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Public interest calls for a hearing of the substantive merits of this appeal,

or its dismissal for being hypothetical

1. On 27-1-2015, leave to appeal to the Federal Court was granted with the

Federal Court, on its own motion, determining the following question for the

appeal:-

“Whether section 66 of the Syariah Criminal Enactment 1992 (Enactment 4

of 1992) of Negeri Sembilan contravenes articles 5(1), 8(1), 8(2), 9(2) and

10(1)(a) of the Federal Constitution.”

2. With respect, that is acceptance of compliance with section 96 of the Courts

of Judicature Act 1964 (“the CJA”); this is an appeal on the “validity of [a]

written law relating to [provisions of the Constitution]”, and it involves

“question(s) of importance upon which further argument and a decision of

the Federal Court would be to public advantage”.

3. A large section of the Malaysian public stands to have any misconception or

misunderstanding they may have about Constitution clarified by the Federal

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Court in this appeal. And there is statistical evidence to show that that seems

to be the case in Malaysia: Islamic Law, Women’s Rights, and Popular Legal

Consciousness in Malaysia, Professor Tamir Moustafa, Volume 38, Issue 1,

168, Winter 2013, Law and Social Inquiry at pp. 178 to 185 [Tab 195]

4. Much labour, time and cost have already been expended by the Appellants’

and Respondents’ solicitors on their written briefs in the Federal Court

towards substantively answering the leave question.

5. It must also be said that the appeal is now arguably hypothetical given that

the Respondents have been discharged by the Syariah court from their

charges under section 66 right after leave was granted by this Honorable

Court on 27-1-2015: Jabatan Agama Islam Wilayah Persekutuan dan 5 Lagi v

Berjaya Books Sdn Bhd dan 2 Lagi, Federal Court, Civil Application No. 08-

27-01/2015, dated 25-8-2015 (per Tun Arifin bin Zakaria, Chief Justice)

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Judicial Review is an appropriate procedure for all matters involving

Constitutional law/Public law, and a “decision” is not a prerequisite to

instituting judicial review

6. On 13-8-2015, during a hearing, the Federal Court expressed concern about

the Respondents’ instituting a judicial review application under O. 53 to

litigate their constitutional law dispute.

7. In 1980, the Rules Committee when repealing the Rules of the Supreme

Court 1957 and replacing them with the Rules of the High Court (RHC),

introduced O. 53 which was equipollent to O. 53 of the Rules of the Supreme

Court in England as it stood in 1976: Malaysian Civil Procedure 2013, History,

para 53/1/2 [Tab 196]

8. On 3-3-1994, the House of Lords decided R v Secretary of State for

Employment ex parte Equal Opportunities Commission [1994] 2 WLR 409

[Tab 197]. It was held by two law Lords, inter alia, that (at pp. 418C – 419F

& 425F – 428D):-

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a. The view that “if there is no decision in respect of which one of [the

prerogative] writs might be issued a declaration cannot be made” is

“too narrow an interpretation of the court’s powers” (at p. 418E – F);

b. Judicial review can be utilized “for the purpose of obtaining an

adjudication upon the validity of the legislation in so far as it affected

the applicants” (at p. 419B – C);

c. Under O. 53 “any declaration as to public rights which could formerly

be obtained in civil proceedings…can now also be obtained in judicial

review proceedings” (at p. 427E);

d. “If this were not so, the effect of O’ Reilly v Mackman, requiring all

public law cases to be brought by way of judicial review, would have

had the effect of thenceforward preventing a plaintiff who previously

had locus standi to bring civil proceedings for a declaration as to

public rights (even though there was no decision which could be the

subject of a prerogative order) from bringing any proceedings for such

a declaration” (at p. 427E – F); and

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e. The court has the “power to make a declaratory judgment in judicial

review proceedings brought by a plaintiff who has locus standi,

whether or not the court could also make a prerogative order” (at pp.

427H – 428A)

9. In 2000, O. 53 in the RHC was amended by the High Court (Amendment)

2000 (P.U. (A) 342/2000). The purpose of the Order as it was introduced in

2000 was to cure the much narrower approach to judicial review under the

previous Order in RHC 1980: Malaysian Civil Procedure 2013, Scope, para

53/1/1 [Tab 198]

10. Under the new O. 53 of the RHC 1980 [Tab 199],:-

a. an applicant “may seek any of the reliefs, including a prayer for a

declaration, either jointly or in the alternative in the same application

if it relates to or is connected with the same subject matter” (O. 53 r

2(2)); and

b. the court “[u]pon the hearing of an application for judicial

review,…shall not be confined to the relief claimed by the applicant but

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may dismiss the application or make any orders, including an order of

injunction or monetary compensation…” (O. 53 r 2(3)).

11. On 29-2-2002, Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2002]

2 CLJ 697 [Tab 200] was decided. It was the “first time [the Court of Appeal

was] dealing with the new O. 53” (at p. 709g). The appellant there instituted

an application under O. 53 for a series of declarations grounded on section

46A of the Legal Profession Act 1976 being inconsistent with a number of

fundamental liberties (at pp. 702h – 703i). The incisive reasoning of the

Court of Appeal warrants close consideration (at pp. 704f – 709g) with the

following three conclusions being instructive in the interpretation of the

new O. 53:-

a. If it is not clear whether judicial review or an ordinary action is the

correct procedure it will be safer to make an application for judicial

review than commence an ordinary action since there should be no

question of being treated as abusing the process of the court by avoiding

the protection provided by judicial review. If judicial review is used

when it should not, the court can protect its resources either by

directing that the application should continue as if begun by writ or by

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directing it should be heard by a judge who is not nominated to hear

judicial reviews (at p. 705e – g);

b. The new O. 53 begins by referring to the enabling provision of para. 1

of the Schedule to the Courts of Judicature Act 1964 (equipollent to

article 226 of the Indian Constitution), which relate to the

enforcement of the fundamental liberties enshrined in Part II of the

Constitution (at pp. 705h – 706e & 706h – 707f); and

c. A rule of court should not be interpreted in such a way as to result in

unfairness or produce a manifest injustice. A manifest injustice would

occur if O. 53 is read restrictively so as to permit an applicant to claim

a declaration only where he applies for it jointly with some other

remedy (at p. 706f – g). Applications and suits are not to be disposed

of on purely technical and procedural grounds. Judges ought to decide

matters according to law and the substantial merits of each case (at

pp. 708d – 709d).

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12. On 24-10-2005, the Court of Appeal makes the following key

observations in Tang Kwor Ham & Ors v Pengurusan Danaharta Nasional Bhd

& Ors [2006] 1 CLJ 927 [Tab 201]:-

“[60] The other point raised by learned counsel before us, with far less

confidence, is that there was here no "decision" by anyone. And, since O. 53

r. 2(4) speaks of a "decision", the applicants have no cause to argue on an

application for judicial review. Again I cannot agree. In the first place there

was, as demonstrated to a conviction by learned counsel for the applicants

indeed a decision made by Danaharta itself. Secondly, O. 53 r. 2(4) must not

be read in isolation. It must be read contextually, together with O. 53 r. 3(6)

which provides:

(6) An application for judicial review shall be made promptly and in

any event within 40 days from the date when grounds for the

application first arose or when the decision is first communicated to

the applicant provided that the Court may, upon application and if it

considers that there is a good reason for doing so, extend the period of

40 days. (emphasis added.)

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[61] If the sub-rules are read together and in their proper context, it can be

seen that there need not always be an actual decision by someone. Take

Sivarasa Rasiah's case. There was no decision by anyone. What had

happened was that the appellant, Sivarasa Rasiah had found himself in a

position where he was unable to be a member of the Bar Council because of

a provision in the Legal Profession Act 1976. He wanted to challenge the

provision and it was held that he could do so by way of a declaration claimed

by way of judicial review. So, again there is no merit in the point taken.”

13. On 17-11-2009, the Federal Court substantively decides Sivarasa Rasiah

v Badan Peguam Malaysia & Anor [2010] 3 CLJ 507 [IAR(3), Tab 83]. To our

knowledge, the Federal Court’s decision in Sivarasa remains good law till

this day.

14. The 1st, 2nd and 3rd Respondent have been arrested and detained 4, 5 and

4 times respectively between 2010 and 2012. The 1st Respondent’s 2nd

arrest shows a disturbing incident of stigma, discrimination and violence by

the State religious authorities1. The 1st and 2nd Respondents were subject to

prosecution from 2010 to January 2015, and the 1st Respondent had been

1 Respondent’s Core Bundle, Tab E, pp. 47 – 68, paras 18 – 35

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punished with fines 2 times in 20102. All actions to investigate, arrest,

detain, prosecute and punish were made pursuant to section 66.

15. On 2-2-2011, relying on case laws at the material time, the Respondents

filed their application for judicial review at the High Court in Seremban with

the primary relief being a declaration that section 66 was inconsistent with

the fundamental liberties guaranteed by the Constitution. It was a direct

constitutional challenge on consistency. The specific instances of the

Respondents’ arrest, detention and prosecution are not under challenge but

are deposed by them in their affidavits to show that section 66 is being

enforced against them i.e. they are adversely affected by the enforcement of

the said law.

16. On 4-11-2011, leave was granted by Rosnaini Saub J who, despite only

deciding leave, wrote a considered grounds of judgment [IAR(2), Tab 39]

[Tab 202] which deals with all concerns raised by the Federal Court on the

last hearing on 13-8-2015. Her Ladyship paid detailed regard to the

2 See Part III, para 5 of the Respondent’s Written Brief for further particulars

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particular facts and circumstance of this case: at paras [8] – [12], [15] & [16]

of the said judgment [Tab 202]

17. On 11-10-2012, the High Court (through another Judge) dismissed in

toto the Respondents’ substantive application for judicial review.

18. On 7-11-2014, the Court of Appeal unanimously set aside the order of the

High Court and declared section 66 unconstitutional. It also found certain

findings of the High Court Judge to be tainted with prejudice.

19. On 27-1-2015, leave to appeal to the Federal Court was granted with the

Federal Court, on its own motion, determining the leave question.

20. With respectful patience, the Respondent Transgenders have persevered

through a series of legal battles for more than four (4) years; with all Judges

agreeing that this is a matter that was not only procedurally correct but also

required resolution based on its merits.

21. With great respect, for the Federal Court to, at this stage, decide that

judicial review is not the appropriate procedure would, in effect, be a setting

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aside of Rosnaini Saub J’s order to grant leave for judicial review in

November 2011; in contravention of O. 53 r 9, RC 2012 [Tab 203] which

reads:-

“An application to set aside any order made by the Judge shall not be

entertained, but the aggrieved party may appeal to the Court of Appeal.”

22. The Attorney General chose not to appeal to the Court of Appeal.

Dated this 25th day of August 2015

[Sgd.]

Aston Paiva for the Respondents

This Respondents’ Points of Clarification is filed for the abovenamed Respondents by their solicitors Messrs Azzat & Izzat with address for service at No. 32, Jalan PJU 7/16, Mutiara Damansara 47800 Petaling Jaya Tel:03- 77256050 Fax:03-77256070 Ref: AI/MISC/0000/72/2014(I)L