2011 sees courts grappling with constitutional issues

The judiciary continued to deal with more constitutional issues this year, particularly on the rights of an individual.       

Early last month, four men obtained leave from the Seremban High Court to challenge a syariah law ruling barring them from dressing as females.       

They sought a declaration from the Civil High Court that Section 66 of the Syariah Criminal (NS) Enactment had no effect and was not applicable on them, contending that they were psychologically women or had gender identity disorder.      

Justice Rosnaini Saub allowed the leave to the four, who work as bridal make-up artists, on the grounds that the matter involved various constitutional issues. No date has been fixed to hear the judicial review application.      

In the application Muhamad Juzaili Mohd Khamis, 24, Shukor Jani, 25, Wan Fairol Wan Ismail, 27, and Adam Shazrul Mohd Yusoff, 25, named the Negri Sembilan Islamic Affairs Department, its director, chief syariah enforcement officer, chief syariah prosecutor and the state government as respondents.      

They claimed that the Section denied them the right to freely express themselves and that as a result of the enactment, they had difficulty to move about and this violated their rights under Article 9 (2) of the federal constitution, regarding mobility.       

The four further contended that the section was in violation of Article 5 of the federal constitution on liberty, particularly on having the freedom to choose.      

Tragic loss for transgenders

In Kuala Terengganu, Aleesha Farhana Abdul Aziz (formerly Mohd Ashraf Hafiz Abdul Aziz, below) who had undergone a sex-change operation, failed in her application to change her name in the national MyKad identity document to her present identity.

The High Court hearing his case ruled that it had no power to make any order in relation to changing the gender status in personal identification based solely on a sex-change operation, following the absence of provisions in law to allow the court to do so.       

In his decision, Justice Mohd Yazid cited three grounds for the rejection, the chromosome count, genital organs during birth and internal organs.

Aleesha, 25, stirred the nation when she made the application on May 25, following a sex-change operation in Thailand, saying she was having difficulties leading a normal life, and to facilitate her application to pursue her study at a local university.      

Justice Mohd Yazid also held that Aleesha was not a real woman, although she had undergone a sex-change operation. Two weeks after that, Aleesha died and doctors said the patient suffered from unstable angina with cardiogenic shock.  

Rakyat scores one on UUCA

Another significant ruling was made by the Court of Appeal which declared a provision in the Universities and University Colleges Act (UUCA) 1971 restricting students from expressing support for or opposing any political party, as unconstitutional.      

In a landmark 2-1 majority decision, the three-man panel held that Section 15 (5)(a) of the UUCA was unreasonable and violated freedom of speech.      

Justices Mohd Hishamuddin Mohd Yunus and Datuk Linton Albert allowed the appeal brought by four political science undergraduates of Universiti Kebangsaan Malaysia (UKM), who faced disciplinary action for being present during campaigning for the Hulu Selangor parliamentary by-election on April 24 last year.      
Justice Low Hop Bing, who led the panel, dissented and ruled that the restriction was necessary to prevent infiltration of political ideologies among students who were "vulnerable, capable of being subjected to peer pressure and easily influenced", pointing out that this would affect the universities' primary purpose in pursuit of education.      

However, Justice Hishamuddin held that Section 15(5)(a) was irrational as it impeded the healthy development of the critical mind and original thoughts of students.     

Justice Albert held that Section 15 (5)(a) of the UUCA had violated Article 10(1)(a) of the federal constitution which allowed freedom of speech and expression.      

Besides cases involving constitutional issues, the long-running sodomy trial of Opposition leader Anwar Ibrahim continued to get wide media attention.     

However, come Jan 9 next year, the High Court will give its verdict whether Anwar is guilty or not on the charge of committing carnal intercourse against the order of nature against his former aide Mohd Saiful Bukhari Azlan, 26, three yeatrs ago.       

- Bernama