Ripples from landmark transgender ruling may reach other cases, lawyers say

By admin-s On Nov 13, 2014

(MMO) – Laws that violate the Federal Constitution must be struck down. Everything is subservient to the Federal Constitution

A critical Court of Appeal decision upholding the supremacy of the Federal Constitution could influence the outcome of cases such as that involving “Allah”where constitutional rights have been abrogated by lesser laws, legal experts said.

Constitutional lawyer Nizam Bashir said the appellate court judgment in the case of three Negri Sembilan transgenders last week has unambiguously articulated the tenet that all laws ― including Shariah laws ― are subject to the Federal Constitution, based on Article 4 of the document that states it to be the overriding law of the country.

While the decision validates a superior precedent on the topic, its appearance now could serve to remind others of the principle that has been sidelined in recent court cases.

“It will be interesting to see how this judgment impacts on various constitutional challenges presently still playing out in the courts, for example the Borders book ban, the decision to prosecute Kassim Ahmad in the Shariah High Court and the right to use the phrase ‘Allah’,” Nizam told Malay Mail Online via email.

The constitutional right to freedom of religion is at the heart of the Sabah Sidang Injil Borneo and Jill Ireland cases, in which a Sabah church and Sarawakian Christian are fighting for the right to use Christian materials containing the Arabic word for God, “Allah.”

In the case of Borders Books, the Federal Court is set to decide on a challenge against a Selangor state legislation that bans religious publications deemed to be un-Islamic as the law arguably violates the right to freedom of speech and expression.

Muslim intellectual Kassim Ahmad, who was charged at the Shariah High Court last March with insulting Islam, has accused the Federal Territory Islamic Religious Department (Jawi) of acting beyond the powers provided under state Islamic laws and the Federal Constitution when it prosecuted and arrested him.

Nizam said Article 74 of the Federal Constitution states that all laws, whether passed by Parliament or by the state, must not violate provisions within the constitution, noting that those that fail this measure are vulnerable to being contested in court.

“Simply put, if a law purports to infringe (on) a fundamental liberty, it would be unconstitutional and this is what the Court of Appeal held when s. 66 of the Shariah Criminal Offences (Negeri Sembilan) 1992 was challenged, that it amongst others infringed the right to freedom of expression,” said the lawyer.