There was a man. His name was Muthu. He married Meenachi. All those time he was feeling uneasy. He was not attracted to Meenachi. But he had to marry her because it was arranged. In fact, he wasn't attracted to any woman. Muthu felt that he was actually a woman trapped in a man's body.
So, he finally summoned enough courage and underwent a sex change. He took whatever hormones pills to make his skin smooth. Removed his penis. Implanted silicon into his chest and grow them up to a pair of C cuppers.
Then he went to Court. And asked for a declaration that he was and is a woman. He also asked for a divorce. Meenachi objected. Some NGO, claiming to represent some rights group intervened and objected too. Some family members also objected.
After a lengthy hearing and hearing submissions from eminent and not so eminent Counsel, the Court granted a declaration that Muthu is and was at all material times a woman. Muthu was very happy. He celebrated. At last, he was free from the constraint of being labelled a man when he is in fact a woman.
Or so he thought.
His wife appealed. The NGO also joined in. His family members as well. While waiting for the appeal, his wife asked the Court of Appeal for an order staying the declaration which Muthu had earlier obtained in the High Court.
Despite the fact that there were two other sittings of the Court of Appeal that day, where a full coram of 3 Court of Appeal Judges were sitting in each of the two sittings, Meenachi's application for a stay order was heard by a single Judge. But Muthu did not say anything. Because under the law, a single Judge could hear such application.
The single Judge Court of Appeal, after hearing submissions, granted an order staying the declaration which Muthu had earlier obtained.
Muthu now has a problem. She has been declared a woman. She behaves like a woman. Dress like one. She's got C-cup boobs. And she has no dick. When she wants to go to the loo, she would want to go to the ladies loo. In fact that is the primary reason for obtaining the declaration. She wants to be able to go to the ladies toilet without committing an offence under some municipal regulations.
But now the declaration is stayed. What does that mean? Does it mean that Muthu is not a woman? But the Court has declared so. In law she is a woman. How? Does it mean now that Muthu cannot go to the ladies toilet? She doesn't want to go to men's toilet. What would the men say? Or do? She has boobs. Wears skirt. No dick. Some men might just smile. Some might take it the wrong way. Some might molest her in the men's toilet. How?
And does it mean now Muthu also cannot behave like a woman? Must she now wear pants and scratch the area where her balls used to be, like other men? And drink beer from the mug in one gulp? And burp loudly after that? Must she also pee while standing? When she is in Kelantan, which supermarket lane is she supposed to be in? Male or female? Muthu is confused. She really doesn't know what to do. How is she supposed to behave now?
Muthu consults her lawyers. Her lawyers say a declaration cannot be stayed. How can a declaration be stayed? You can stay the execution of a judgement or order. Meaning, if the Court gives an order saying Meenachi owes 1 million to Muthu, the Court can stay the execution of that order. When that kind of stay is given, it means that Muthu cannot do anything to recover that 1 million until Meenachi's appeal is heard and decided upon. But in that case, it is still an accepted fact that Muthu is a holder of an order requiring Meenachi to pay 1 million to Muthu. That order is not reversed. It is valid. The only thing is that Muthu cannot recover that 1 million just yet. Until Meenachi's appeal is heard and decided upon, that is.
But Muthu did not get that kind of order. Muthu obtained a declaration that she was and is a woman. How do you stay that kind of order. Stay what? To stay that kind of declaration would tantamount to the Court of Appeal reversing the declaration which the High Court had granted after full adjudication. That couldn't be. How can the Court of Appeal do that without hearing the appeal on the merit?
To do such thing would tantamount to the CoA not recognising the High Court order. The CoA surely cannot do that. In the hypothetical case of the 1 million order above, the Court does not invalidate that order. The Court just suspends Muthu's right to recover the 1 million. The Court recognises the validity of the order but the Court says Muthu should not recover the 1 million for the time being.
But to stay a declaration is a different game. That is like saying that declaration does not exist for now. So, Muthu is, for the time being, a man.
Muthu is thinking of wearing black all the time.
PS Just as a digression. On Nizar v Zambry declaration, I was thinking. Under section 54 (d) of the Specific Relief Act 1950, no injunction shall be granted to, among others, interfere with the public duties of any department of any Government in Malaysia. Nizar has been declared the Menteri Besar of Perak. Now, the stay which was given operates or at least is intended to stop him from carrying out his duties as the MB of Perak. It operates as an injunction of sort. Wouldn't section 54 apply? Just a thought.