‘Religion or rights: The higher moral ground’
Sharon A Bong
On 7 November 2014, the second highest civil court in Malaysia ruled that Islamic law (Syariah) is subject to the Federal Constitution, in a landmark decision that spelt victory for the rights of transgender people.
The Court of Appeal “ruled that Section 66 of the Negri Sembilan Syariah Criminal Enactment 1992, which prohibits Muslim men from cross-dressing, was unconstitutional and void as the state law contravened a slew of fundamental liberties, which are personal liberty, equality, freedom of movement and freedom of expression”. Five months ago, the Syariah Law was not subject to the Federal Constitution as the state’s Religious Department had used the very same Syariah provision to mass arrest 16 trans-women at a wedding party.
This decision is almost miraculous given the history of marginalisation of transgender people in Malaysia with proponents often using Islam as a tool of oppression of sexual minorities. So does this decision point to the fickleness of the judiciary system in Malaysia? Or does it tell a different tale? I would contend that it does; it points to the on-going tussle in claiming ascendency between religion and rights.
What does it mean to claim ascendency between religion and rights? It is to claim the higher moral ground in cases or situations where one is forced to choose either religion or rights. On the one hand, the either/or choice is a false one as many advocates of human rights also work from a faith-based framework. In doing so, they show that one can successfully and necessarily integrate a rights-based and faith-based praxis which is intended to better implement rights in religions. On the other hand, this landmark victory would not have occurred if the choice of either religion or rights was not made. In this case, the rights of transgender people – as enshrined in the Federal Constitution and sexuality rights documents (such as the Yogjakarta Principles) – uncharacteristically took precedence.
Yet, true victory lies with both religion and rights being equally claimed. As we consider the fundamental right of “freedom of thought, conscience and religion”, we are reminded that human rights are essentially indivisible. This means that no single right ideally has precedence over other rights as these are inextricably linked which the court decision upholds. Thus, sexuality rights and “freedom of thought, conscience and religion” of transgender people, in effect, won the day.
 Human Rights Watch (2014) ‘Malaysia: Court victory for transgender rights’, HRW News, 7 November 2014, available at: http://www.hrw.org/news/2014/11/07/malaysia-court-victory-transgender-rights (accessed 22 December 2014);; Human Rights Watch (2014) “I’m Scared To Be a Woman: Human Rights Abuses Against Transgender People in Malaysia, available at: http://features.hrw.org/features/HRW_reports_2014/Im_Scared_to_Be_a_Woman/index.html (accessed 22 December 2014).
 Negeri Sembilan is one of 13 states in Malaysia and all have a similar prohibition. See: Malay Mail (2014) ‘Islamic law is subject to the Federal Constitution, Court of Appeal says in transgender case‘, Malay Mail Online, available at: http://www.themalaymailonline.com/malaysia/article/islamic-law-is-subject-to-the-federal-constitution-court-of-appeal-says-in (accessed 22 December 2014).
 International Commission of Jurists (ICJ) (2007), Yogyakarta Principles – Principles on the application of international human rights law in relation to sexual orientation and gender identity, March 2007, available at: http://www.unhcr.org/refworld/docid/48244e602.html (accessed November 2014).
 United Nations (1948) ‘The Universal Declaration of Human Rights’, http://www.un.org/en/documents/udhr/index.shtml#a18 (accessed November 2014).