CHILD RIGHT'S VIOLATED IN SERBAN CASE
The recent Federal Court decision on what has come to be commonly be known as the ‘serban case’ has, in fact, watered down freedom of religion in Malaysia, in particular the right to practise and profess one’s religion, and also the rights of the child.
This case was about three children attending a government school wearing the serban (male headgear) and who refused to stop doing so despite being told that Regulation 3(i)(I) of the School Regulations 1997 prohibited pupils from wearing the jubah, turban (serban), topi, ketayap and purdah.
This School Regulations 1977 were the Peraturan Sekolah Kebangsaan Serting (Felda) 1997, meaning it was a regulation of just that particular school apparently made pursuant to a circular of the education ministry (Surat Pekeliling Ikhtisas Bil. 9/1975). One wonders whether that regulation would also mean that a Sikh student will also be prohibited from wearing a turban.
The children’s parents (and presumably the three children also) were of the belief that their religion and their God requires of them to wear that particular headgear. From the facts, it seems clear that this was indeed a rather strong belief so much so that they refused to cease wearing the serban even on the threat of expulsion from school. They were finally expelled.
I cannot see how the wearing of a headgear, be it a turban or a serban or a ketayap, would in any way infringe on or violate the rights of any other student in the school. I cannot see how a serban would in any way affect the education of these three students, or the education of the other students.
These three students may not probably be able to join certain uniformed bodies, or maybe even take part in certain sporting activities which require a naked head but other than that it would, in all probability, not in any way affect their education or their development.
It also seems that this school regulation and the ministry's circular came into being after these students were already in school for several years. Therefore, logically and reasonably, I do not see why a student is not allowed to wear this headgear or any other headgear which they believe their religion (or even their cultural practice) requires of them.
Different beliefs
Reading the Federal Court judgment, it was humorous that the authorities suggested that the children remove the serban and wear another headgear, the songkok. Therefore, it was all right for a student to wear a songkok but not a serban.
One immediately wonders whether there was some political motive or agenda behind this particular school regulation, noting that it is common knowledge that the serban is the more favoured headgear of those who support PAS, the main Islamic opposition party, while the songkok is the preferred headgear for those in Umno, the leading party in the Barisan Nasional government.
It is my strong opinion that any student should be allowed to wear any headgear, earring, necklace or markings on their head by reason of their religious belief provided that it does not interfere with his and his schoolmates education, and is not something that is not disrespectful of or an affront to another person’s religion or belief.
This is the freedom of religion that our Federal Constitution talks about. It must also be noted that even when it comes to standard uniforms in school, there are many jurisdictions that do not even have this requirement.
Hence, I would say, without even going into trying to interpret what is required of a good Muslim or applying the integral part of the religion test, that this school regulation was definitely a violation of the constitutionally guaranteed freedom of religion.
Let us not delude ourselves by ignoring the fact that there are so many different beliefs, viewpoints and thinking as to what is required by a religion with regard to practice or even what constitutes the integral part of the religion.
In Malaysia, a multi-religious community, we know and see that there are so many different schools, mazhab, churches, inclinations and beliefs not only in Islam but also in Christianity, Buddhism and Hinduism. It is dangerous when our Federal Court attempts to do for Islam what Constantine did for the Christians in Nicea when they tried and listed out what constitutes the integral beliefs of Christianity, which ultimately resulted in the Nicene Creed.
When it comes to religion, we can only safely conclude on what are the core values those being mercy, compassion, justice, caring, human rights and peace. It is near impossible to conclude on what are the integral practices, creeds, cults or codes of the believers of a religion or a faith.
Evidence of torture
In their judgment, the Federal Court did also go on to say that justice is blind. Yes. But not judges. They should not be. But sadly, a perusal of some of the comments made in their judgment indicates not just a bit of ignorance but a bias on the part of these judges with regards to how they perceive some aspects of Malaysian reality.
For example, their comments about one of the missionary group (I believe that reference was about the Al-Arqam) which the Malaysian government ultimately cracked down on using laws like the Internal Security Act (ISA).
This group distinguished themselves by their dress, the men and their male children wore the jubah and the serban. They had been declared unlawful and we saw their top leaders confessing, crying and repenting over television
I believe that this statement about the top leaders confessing, crying and repenting over television is made forgetting that these top leaders were arrested under the ISA where, over the years, there has been evidence of torture inflicted on many victims of this draconian detention without trial law.
But this was nothing more than an indicator of how efficient the Malaysian police have become in breaking down people.
Then, there is the apparent acceptance by the Federal Court judges of the government’s propaganda that National Service was introduced to curb the growing racial and religious polarisation among students.
Was not national service introduced as a means of curbing the growing number of youths that were becoming more and more critical of the present government, especially after 1998? Was it not an attempt to try to win back the declining support of the youth to the BN government?
In Singapore, National Service had been apparently rather effective in creating an uncritical, subservient and pro-PAP Singaporean. Is that also not the Malaysian government’s real agenda? But when the Federal Court judges made a statement that was an acceptance of the government’s reasons, the impartiality of the judges became questionable.
Child’s interests
Racial and religious polarisation has always existed in Malaysia, in the universities in particular, from the mid-70s. Three boys wanting to wear the serban because of their religious belief, or some others wanting to dress differently because of their religion, cannot be said to be the cause of racial-religious polarisation, or something that will propagate polarisation.
The individuality of the human person should always be accepted and promoted. What we should be against is the attempt of the state to make all persons into uniformed beings, not just with regards to socio-economic and political thought but also in the way in which we are to profess and practise our religion. This trend is dangerous and will not be for the future good of Malaysia.
These three children were expelled from school and deprived of their right to education in a national school all because of some school regulation about the wearing of a serban, which they wore because of their religious belief.
The executive and also the courts, seem to have forgotten that Malaysia has ratified the United Nations Convention on the Rights of the Child (CRC) in 1995, and of which Article 3(1) very clearly states : “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
Were the best interests of Meor Atiqulrahman Ishak, Syed Abdullah Khaliq Aslamy Syed Ahmad Johari and Syed Ahmad Syakur Dihya Syed Ahmad Johari the primary consideration of the school, the education ministry, the government and the courts of law?
At the end of the day, we have to ask ourselves whether the Federal Court had acted justly based on principles of justice or had made a judgment because they did not want to rebel against or disobey the government of the day.
For Malaysia, the Federal Court judgment in the serban case is good as it seemingly reaffirms the fact that Malaysia, being a multi-racial, multi-cultural, multi-lingual and multi-religious nation-state, is a secular state and not an Islamic state.
The question remains as to whether justice was done for these three children who were expelled because they did not want to remove their serban, a headgear they wore because they believed their religion required them to do so.
CHARLES HECTOR is a human rights activist and a lawyer.
This case was about three children attending a government school wearing the serban (male headgear) and who refused to stop doing so despite being told that Regulation 3(i)(I) of the School Regulations 1997 prohibited pupils from wearing the jubah, turban (serban), topi, ketayap and purdah.
This School Regulations 1977 were the Peraturan Sekolah Kebangsaan Serting (Felda) 1997, meaning it was a regulation of just that particular school apparently made pursuant to a circular of the education ministry (Surat Pekeliling Ikhtisas Bil. 9/1975). One wonders whether that regulation would also mean that a Sikh student will also be prohibited from wearing a turban.
The children’s parents (and presumably the three children also) were of the belief that their religion and their God requires of them to wear that particular headgear. From the facts, it seems clear that this was indeed a rather strong belief so much so that they refused to cease wearing the serban even on the threat of expulsion from school. They were finally expelled.
I cannot see how the wearing of a headgear, be it a turban or a serban or a ketayap, would in any way infringe on or violate the rights of any other student in the school. I cannot see how a serban would in any way affect the education of these three students, or the education of the other students.
These three students may not probably be able to join certain uniformed bodies, or maybe even take part in certain sporting activities which require a naked head but other than that it would, in all probability, not in any way affect their education or their development.
It also seems that this school regulation and the ministry's circular came into being after these students were already in school for several years. Therefore, logically and reasonably, I do not see why a student is not allowed to wear this headgear or any other headgear which they believe their religion (or even their cultural practice) requires of them.
Different beliefs
Reading the Federal Court judgment, it was humorous that the authorities suggested that the children remove the serban and wear another headgear, the songkok. Therefore, it was all right for a student to wear a songkok but not a serban.
One immediately wonders whether there was some political motive or agenda behind this particular school regulation, noting that it is common knowledge that the serban is the more favoured headgear of those who support PAS, the main Islamic opposition party, while the songkok is the preferred headgear for those in Umno, the leading party in the Barisan Nasional government.
It is my strong opinion that any student should be allowed to wear any headgear, earring, necklace or markings on their head by reason of their religious belief provided that it does not interfere with his and his schoolmates education, and is not something that is not disrespectful of or an affront to another person’s religion or belief.
This is the freedom of religion that our Federal Constitution talks about. It must also be noted that even when it comes to standard uniforms in school, there are many jurisdictions that do not even have this requirement.
Hence, I would say, without even going into trying to interpret what is required of a good Muslim or applying the integral part of the religion test, that this school regulation was definitely a violation of the constitutionally guaranteed freedom of religion.
Let us not delude ourselves by ignoring the fact that there are so many different beliefs, viewpoints and thinking as to what is required by a religion with regard to practice or even what constitutes the integral part of the religion.
In Malaysia, a multi-religious community, we know and see that there are so many different schools, mazhab, churches, inclinations and beliefs not only in Islam but also in Christianity, Buddhism and Hinduism. It is dangerous when our Federal Court attempts to do for Islam what Constantine did for the Christians in Nicea when they tried and listed out what constitutes the integral beliefs of Christianity, which ultimately resulted in the Nicene Creed.
When it comes to religion, we can only safely conclude on what are the core values those being mercy, compassion, justice, caring, human rights and peace. It is near impossible to conclude on what are the integral practices, creeds, cults or codes of the believers of a religion or a faith.
Evidence of torture
In their judgment, the Federal Court did also go on to say that justice is blind. Yes. But not judges. They should not be. But sadly, a perusal of some of the comments made in their judgment indicates not just a bit of ignorance but a bias on the part of these judges with regards to how they perceive some aspects of Malaysian reality.
For example, their comments about one of the missionary group (I believe that reference was about the Al-Arqam) which the Malaysian government ultimately cracked down on using laws like the Internal Security Act (ISA).
This group distinguished themselves by their dress, the men and their male children wore the jubah and the serban. They had been declared unlawful and we saw their top leaders confessing, crying and repenting over television
I believe that this statement about the top leaders confessing, crying and repenting over television is made forgetting that these top leaders were arrested under the ISA where, over the years, there has been evidence of torture inflicted on many victims of this draconian detention without trial law.
But this was nothing more than an indicator of how efficient the Malaysian police have become in breaking down people.
Then, there is the apparent acceptance by the Federal Court judges of the government’s propaganda that National Service was introduced to curb the growing racial and religious polarisation among students.
Was not national service introduced as a means of curbing the growing number of youths that were becoming more and more critical of the present government, especially after 1998? Was it not an attempt to try to win back the declining support of the youth to the BN government?
In Singapore, National Service had been apparently rather effective in creating an uncritical, subservient and pro-PAP Singaporean. Is that also not the Malaysian government’s real agenda? But when the Federal Court judges made a statement that was an acceptance of the government’s reasons, the impartiality of the judges became questionable.
Child’s interests
Racial and religious polarisation has always existed in Malaysia, in the universities in particular, from the mid-70s. Three boys wanting to wear the serban because of their religious belief, or some others wanting to dress differently because of their religion, cannot be said to be the cause of racial-religious polarisation, or something that will propagate polarisation.
The individuality of the human person should always be accepted and promoted. What we should be against is the attempt of the state to make all persons into uniformed beings, not just with regards to socio-economic and political thought but also in the way in which we are to profess and practise our religion. This trend is dangerous and will not be for the future good of Malaysia.
These three children were expelled from school and deprived of their right to education in a national school all because of some school regulation about the wearing of a serban, which they wore because of their religious belief.
The executive and also the courts, seem to have forgotten that Malaysia has ratified the United Nations Convention on the Rights of the Child (CRC) in 1995, and of which Article 3(1) very clearly states : “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
Were the best interests of Meor Atiqulrahman Ishak, Syed Abdullah Khaliq Aslamy Syed Ahmad Johari and Syed Ahmad Syakur Dihya Syed Ahmad Johari the primary consideration of the school, the education ministry, the government and the courts of law?
At the end of the day, we have to ask ourselves whether the Federal Court had acted justly based on principles of justice or had made a judgment because they did not want to rebel against or disobey the government of the day.
For Malaysia, the Federal Court judgment in the serban case is good as it seemingly reaffirms the fact that Malaysia, being a multi-racial, multi-cultural, multi-lingual and multi-religious nation-state, is a secular state and not an Islamic state.
The question remains as to whether justice was done for these three children who were expelled because they did not want to remove their serban, a headgear they wore because they believed their religion required them to do so.
CHARLES HECTOR is a human rights activist and a lawyer.
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