Basic Human Rights

THE BASIC HUMAN RIGHTS In Malaysia, there are a set of rules that safeguards our freedom, the basic human rights of Malaysian is compiled under the Federal Constitution. This compilation of laws are supreme as mentioned under Article 4 of the Federal Constution. This means that even the Syariah Law of Malaysia can not go against the Federal Constitution. The decision of the Court of Appeal for the case of Muhamad Juzaili Bin Mohd Khamis & Ors v State Government Of Negeri Sembilan & Ors seems to suggest that Syariah Law is bound by the Federal Constitution in Malaysia.[1] This case sprout quite a huge controversy that begs the question whether does Syariah Law really bound by the Federal Constitution and whether does Section 66 go against the basic human rights under the Federal Consitution. The right to personal liberty is are protected under Article 5 of the Federal Constitution. Accordingto Article 5,the personal liberty of a person is guaranteed under the constituion save in accordance to law, this gives space for laws to govern or limit personal liberty. However, this privilege is only in extend that the law to limit that liberty is just and not discriminatory. If the law is discriminatory or too arbitrary, then it is not in line with the wordings of Article 5.[2] As the judge in Muhamad Juzaili’s case, refered to the Federal Courts decision on the case of Sivarasa Rasiah v Badan Peguam Malaysia & Anor, where the judge in this case agreed with the view that the wrodings ‘save in accordance to law’ refers to laws that are just, not discriminatory and not arbitrary and if the law is challenged for violating fundamental rights then it must immediately be engaged.[3] In the case of Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v Utra Badi K Perumah, the court held that the wording of Article 5(1) ‘life’ refers to living with dignity. Which means that the Article 5(1) protect the rights to live with dignity and pride without discrimination by others. This article guarantess the right of an individual to express themselves.[4] In addition, Article 5 also protects the right to livelihood. Article 5 enables a person to have a livelihood of their own choosing without being questioned of their choise in life. Section 66 of the Negri Sembilan Shariah Criminal Enactment 1992 which states that no Muslim man shall wear the attire of a woman, it is reasonable to say that this section is an infringement of Article 5(1).[5] Section 66 go against the right of an individual to live with dignity without discrimination. The plaintiff of the case, was deprived from a live of certainty. The court held that as long as this section is in force, the appellants will continue to live in misery and indignity. This shows that the Section 66 is not in line with the Federal Constitution and therefore unconstitutional. This section also prevent the appellants from having a livelihood since this section exposes the appellants to arrest, thus affecting their right to livelihood. Therefore, it is evident that Section 66 is inconsisitent with Article 5 of the Federal Constitution.[6] Next, Article 8 of the Federal Constitution gives rights for equality and equal protection of the law. This article gives an individual the right to be treat equal with one another. Section 2 of the Article 8 guarantees that there will be no discrimination against its citizen on the ground of gender. Section 66 of the Negri Sembilan Shariah Criminal Enactment 1992 disturbed the harmony of the right of equality and uqual protection under the law.[7] According to the cross-dressing case, the court stated that the section is contrary to the Article because, the appellants are sufferers of a recognized mental condition known as Gender Identity Disorder. Therefore, they are different compare to nomal Muslim man. This means that they are not equal with normal Muslim man. Due to this state, the appellant are nto to be treated similary as a normal Muslim. The appellants’s mental condition doe not permit them to be treated equally as the others. The Section 66 which is impose upon them are not aligned with the spirit of Article 8(1) of the Federal Constitution. Therefore, section 66 are in fact contrary to the Article 8 of the Federal Constitution.[8] Furthermore, as mentioned above, Article 8(2) provides protection against discrimination on the grounds of gender. The court in this case held that the wordings of Section 66 suggest that only Muslim man not allow to cross-dress as the opposite gender. However, Muslim woman are not prohibited from doing that. Thus it is not aligned with the spirit of Article 8(2) of the Federal Constitution as this section is bias on Muslim man. This creates a bias situation upon Muslim man, this section does not affects the Muslim woman which is unfair and did not come in line with Article 8.Therefore, Section 66 is discrimatory on the grounds of gender, it is evident that this section is consistent with Article 8 and the section is void.[9] Next, Article 9(2) provides protection fo thr right to movement within the Federation. Section 66 of the Negri Sembilan Shariah Criminal Enactment 1992 causes the appellant restricted from to be in public places for cross-dressing. The restriction of Section 66 denied the appellants as Gender Identity Disorder sufferers to able to move around while expressign themselves without being expose to the threat of arrest . The court accepted that Section 66 is inconsistent with Article 9(2). The court that after using the test of reasonableness and found that it is unreasonable to subject the appellant to such arbitrary restriction. It is evident that due to this section, the appellant with be subject to discrimination upon leaving their home. The right of Article 9 was denied for the appellants.[10] Although the appellants are Muslim, as mentioned above, they are GID sufferers. Therefore, this section is not applicable with them, and the application would be inconsistent as it is too arbitrary.[11] Furthermore, Article 10(1)(a) guarantees the right to freedom of expression. This article provides the citizen to have the freedom to express themselves as whoever they wanted to be, without being judged or restricted from that right. Section 66 is in breach with Article 10(1)(a) as such section is intefering the appellants right to express themselves as GID sufferers to cross-dress as a woman. Under Article 10(2) states that the Parliament is given power to impose laws to limit the right under Article 10(1)(a). However it does not state that the State Legislative Assemblies in Malaysia is allowed to enact such law to restrict Article 10.[12] Therefore, Section 66 of Negri Sembilan Shariah Criminal Enactment 1992 is unconstitutional as this section is enacted without the authorization from Article 10(2) of the Federal Constitution. In conclusion, Section 66 of the Negri Sembilan Shariah Criminal Enactment 1992 is unconstitutional and breached Article 5(1), 8(1), 8(2), 9(2), 10(1)(a), 10(2) of the Federal Constitution. It is reasonable for the Court of Appeal in the cross-dressing case to declared section 66 is void for ultra vires, the judgment of this case shows that Syariah/Islamic law is bound by the Federal Cosntitution as supported by Article 10(2) which states that only the Parliament can enact laws to restrict rights. Since Syariah law is state matter, therefore, it is on the jurisdiction of the State Legislative Assemblies. The Assemblies must align with the laws under Federal Constitution since it was the Federal Constitution that confers powers to the Assemblies.

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[1] Qishin Tariq, 'Court of Appeal: Negri Sembilan Syariah law against cross-dressing unconstitutional' (Thestar.com.my 2014) <https://www.thestar.com.my/News/Nation/2014/11/07/Negri-Sembilan-syariah-law-against-transgenders-unconstitutional/> accessed 26 December 14 [2] Federal Constitution A5(1) [3] Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 3 CLJ 507 [4] Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v Utra Badi K Perumah [2000] 3 CLJ 224 [5] Negri Sembilan Shariah Criminal Enactment 1992 s66 [6] Muhamad Juzaili Bin Mohd Khamis & Ors v State Government Of Negeri Sembilan & Ors [2014] MLJU 1063 [7] Federal Constitution A 8 [8] Federal Constitution A 8(1) [9] Federal Constitution A 8(2) [10] Federal Constitution A 9(2) [11] Muhamad Juzaili Bin Mohd Khamis & Ors v State Government Of Negeri Sembilan & Ors [2014] MLJU 1063 [12] Federal Constitution A 10

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