Islamic law restricted to familial matters, Court of Appeal says in transgender case


Boo Su-Lyn, Malay Mail Online

Malaysian law is secular as the Federal Constitution restricts Islamic legislation to marriage, divorce and inheritance based on the Supreme Court’s ruling in the landmark 1988 Che Omar Che Soh case, the Court of Appeal has ruled in a high-profile transgender case.

The three-judge panel of Malaysia’s second-highest court led by Justice Datuk Mohd Hishamudin Yunus cited former Lord President Tun Salleh Abas, who had ruled that the framers of the Federal Constitution had confined the word “Islam” in Article 3 — which says that Islam is the religion of the Federation — to the areas of marriage, divorce and inheritance law, based on the history of Islamic legislation in Malaya during British colonial times.

“If it had been otherwise, there would have been another provision in the Constitution which would have the effect that any law contrary to the injunction of Islam will be void,” Hishamudin quoted Salleh as saying in the Supreme Court’s unanimous decision.

“Far from making such provision, Article 162, on the other hand, purposely preserves the continuity of secular law prior to the Constitution, unless such law is contrary to the latter,” Salleh added, referring to Article 162 of the Federal Constitution that states existing laws shall continue to be in force on and after Merdeka Day.

“In short, the Supreme Court takes the position that it was the intention of the framers of our Federal Constitution that the word ‘Islam’ in Art. 3(1) be given a restrictive meaning,” Hishamudin said in the appellate court’s full judgment released on January 2 in the case of three Muslim transwomen fighting a cross-dressing ban under Negri Sembilan Shariah law.

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