CSBR Statement in Support of Mak Nyah in Negeri Sembilan & Across Malaysia
The Coalition for Sexual and Bodily Rights in Muslim Societies (CSBR) expresses our solidarity with Mak Nyah in Negeri Sembilan state and across Malaysia, whose access to justice in the face of arbitrary arrests, detentions, and violations of their personhood, freedom of expression, and freedom of movement and public participation continues to be delayed.
Since 2010, trans women in the Negeri Sembilan state have been subjected to arbitrary arrest and violent detentions under Section 66 of the Negeri Sembilan Syariah Criminal Enactment 1992, which states that ‘any Muslim male person, who, in any public space, poses as a woman and wears a woman’s attire shall be guilty of an offense, and shall be liable upon conviction to a fine of up to MYR 1000 or to imprisonment for a term not exceeding six months, or to both’.
In February 2011, three transgender women—Muhamad Juzaili Mohd Khamis, Shukur Jani, and Wan Fairol Ismail—filed a Judicial Review application on the constitutionality of Section 66, and a long, complex struggle to access justice in the formal court system began.[1] Almost four years later on 7 November 2014, the Court of Appeal delivered a landmark decision that Section 66 was incompatible with the Malaysian constitution, particularly Articles 5(1) regarding life and liberty, 8(1) regarding equality, 8(2) regarding gender discrimination, 9(2) regarding freedom of movement, 10(1)(a) regarding freedom of speech, assembly and association.
The Court of Appeal’s judicial reasoning was a strong affirmation of Mak Nyah communities’ rights to self-determination and dignity, and to equal protection under the law. The Court of Appeal’s reasoning was also important in recognizing that laws such as Section 66 that criminalize gender expression impact upon the rights of all persons, regardless of gender or religion, and cannot be used to undermine constitutional rights of Malaysian citizens.
Today, on 8 October 2015, the Federal Court of Malaysia has decided that the decision by the Court of Appeal cannot be upheld, on the basis of a technicality regarding judicial process. The Federal Court sided with the argument put forth by the Negeri Sembilan government that the High Court and the Court of Appeal erred in entertaining the judicial review, and that it should have been taken up by the Federal Court directly.
Despite the ruling, the atmosphere at the courthouse was not one of resignation. As Nisha Ayub shared with us after the judgement was delivered, “As a citizen of Malaysia reflecting on the judgement today, I’m trying to understand why this objection is only being raised now, and not at any of the original proceedings in the last four years. At the end of the day, they are just trying to find a scapegoat entry to say that this is not right. That is very clear, because we already won the case. So yes I feel disappointed, but at the same time I feel I’m still empowered because we got a good judgement. We as a community are empowered and can support each other through the legal procedures. They can say whatever they want to say, and we will continue fighting our way for rights.”
As respondent lawyer Aston Paiva shared, “The orders of the High Court and the Court of Appeal were set aside today, but what is important is that the reasoning of the Court of Appeal is still there. So if we do go back to the Courts, all we’re going to do is go back with the reasoning of Justice Hishamudin, Justice Azia Ali, and Justice Lim Yee Lan and say, ‘This is our case, you have to deal with the argument now’. And in that regard I am actually happy. The Court of Appeals’ decision on its substance was never overturned, just the procedural point.”
In terms of next steps, S. Thilaga of Justice for Sisters expressed that it would be important now to monitor the state enforcement of Section 66, and see whether the arrests and harassment of transgender communities under Section 66 would begin again. She highlighted that while after the Court of Appeals 2014 ruling, no further arrests of Mak Nyah in Negeri Sembilan were made as that would have contradicted the ruling, other Malaysian states that have similar laws criminalizing gender expression and identities have continued to arrest trans women at private gatherings, including weddings and birthday celebrations in private homes.
“In our mind, access to justice shouldn’t be this difficult, this tedious, this complex; it should be transparent and accountable. But despite the decision today, we are comforted by the fact that there are a lot of supporters, and people working to raise awareness on violence and discrimination faced by trans women and hope people will continue to speak out.”
The Coalition for Sexual and Bodily Rights in Muslim Societies supports the on-going struggles to access justice for Mak Nyah in Negeri Sembilan state and across Malaysia. We join the call for the safety, security, and well-being of transgender communities to be upheld, and for an end to harassment, intimidation, arrests and detentions on the basis of gender identity and expression.
For more information about the court case and proceedings, contact Justice for Sisters at justiceforsisters@gmail.com.
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“He was a caring and kind-hearted guy. But blame it on my immaturity, I lost my virginity to him as we started having sex, or to be more precise – unprotected sex. We met each other almost every day and we were almost inseparable. After seven months of us being together, I began to feel really weird,” Elisa recollected.
