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Religious Dress in Schools: The Serban Controversy in Malaysia

Published online by Cambridge University Press:  17 January 2008

Li-Ann Thio  and
Jaclyn Ling-Chen Neo
Li-Ann Thio
Affiliation:
BA (Oxon)(Hons); LLM (Harv); PhD (Cantab), Barrister (GI), Associate Professor, Faculty of Low, National University of Singapore.
Jaclyn Ling-Chen Neo
Affiliation:
LLB (Hons) (National University of Singapore), Advocate & Solicitor (Singapore), Associate, WongPartnership, Public Law Tutor (2005–2006), Faculty of Low, National University of Singapore.
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Extract

There has been a spate of litigation before constitutional and human rights courts challenging restrictions on wearing religious dress in state schools as an infringement of religious freedom rights.1 These cases implicate deeper constitutional issues pertaining to State-Religion relations, religious pluralism and expressions of religious identity in the public domain of multicultural societies. Within Europe, this problem relates to the issue of integrating immigrants into national society and preserving secular political orders. The European Court of Human Rights in Leyla Sahin v Turkey2 [‘Sahin’] noted that within democratic societies, opinions ‘reasonably differ widely’ on State-Religion relations, reflected in the diversity of national approaches. For example, the 2004 French law banning ostentatious religious symbols from public schools,3 embodying a strict, doctrinaire secularism, contrasts sharply with the more accommodating liberal approach where British schools pragmatically offer students alternative uniforms to satisfy religious dress codes for public modesty. The English Court of Appeal in Shabina Begum v Governors of Denbigh High School4 [‘Begum’] held, in applying the Human Rights Act,5 that the school as a state institution was obliged to consider the claimant's religious rights under Article 9(1) of the European Convention of Human Rights [ECHR], and to justify its school policy under the Article 9(2) limitation clause. The United Kingdom is ‘not a secular state’6 as statute provides for religious education and worship in schools.

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 55 , Issue 3 , July 2006 , pp. 671 - 688
Copyright
Copyright © British Institute of International and Comparative Law 2006

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References

1 eg Leyla Sahin v Turkey (29 June 2004 ) Appln No 44774/98 European Court of Human Rights; Kopftuch-Urteil [Headscarf Decision] (24 Sept 2003), BVerfGE 108, 282, Bundesverfassungsgericht [BVerfG] [German Federal Constitutional Court] NJW 56 (2003), 3111, 2 BvR 1436/02, <http://www.bverfg.de/entscheidungen/rs20030603_2bvr143602.html>; Fathema Hussain Sayed v Bharat Education Society Writ No 1096 of 2002 (Bombay High Court); and Multani v Commission Scolaire Marguerite-Bourgeoys (2006) SCC 6.

2 29 June 2004 Appln No 44774/98, para 101

3 Beller, Elisa ‘The Headscarf Affair: The Conseil d'État on the Role of Religion and Culture in French Society’ (2004) 39 Texas International Law Journal 581.Google Scholar

4 [2005] All ER (D) 32; 2005 EWCA Civ 199 (English Court of Appeal); see Li-ann Thio ‘School Dress Codes, Religious Freedom and Human Rights’ (2005) 121 LQR 572. The House of Lords decision is reported at R (on the application of Begum) v Head Teacher and Governors of Denbeigh High School [2006] UKHL 15, [2005] 2 All ER 487.

5 Human Rights Act 1998 (Chapter 42) United Kingdom's Office of Public Sector Information <http://www.opsi.gov.uk/acts/acts1998/19980042.htm> (date accessed 30 Jan 2006).

6 Scott, Baker LJ, R v Governors of Denbigh High School [2005] EWCA Civ 199, para 94.Google Scholar

7 [2000] 5 MLJ 375 decision of 6 Aug 1999 (High Court, Seremban).

8 Laws of Malaysia: Federal Constitution (MDC Publishers Sdn Bhd Malaysia 2003), also <http://confinder.richmond.edu/local_malaysia.html> (date accessed 26 June 2005).

9 [2005] 2 MLJ 25, judgment of 11 Dec 2004 (Court of Appeal, Putrajaya).

10 Harding, AJ, ‘Islam and Public Law in Malaysia: Some reflections in the Aftermath of Susie Teoh's case’ [1991] 1 MLJ xci, xciii.Google Scholar

11 To garner political support, Malay politicians have invoked the Islamic quality of the Malaysian State: see Reme Ahmad ‘Reversal of roles’ Straits Times (Singapore, Asia 6 Mar 2004); Harding, Andrew ‘The Keris, the Crescent and the Blind Goddess’: The State, Islam and the Constitution in Malaysia’ (2002) 6 Sing JICL 154–80.Google Scholar

12 Application No 42393/98, ECHR 2001-V.

13 Lina Joy v Majlis Agama Islam Wilayah [2004] 2 Malayan Law Journal (MLJ) 119, 128F-G, citing Min, Lee ChoonFreedom of Religion in Malaysia (Kairos Research Center Sdn Bhd Kuala Lumpur 1999).Google Scholar

14 Arts 1 and 2, Islamic Republic of Iran Constitution (1979), expressly refer to the Quran. Art 1 of Saudi Arabia's 1993 Basic Law of Government states ‘God's Book and the Sunnah’ are the substantive constitution.

15 Lee, HP ‘Constitutional Amendments in Malaysia’ (1976) 18 Mal L R 59, 59.Google Scholar

16 Literally, ‘sons of the soil’ or indigenous.

17 The agreement was to review this Article after 15 years but due to protests from certain Malay factions, the clause was modified to require the Malaysian monarch only to cause a review of the provisions from ‘time to time’: Joseph M Fernando The Making of the Malayan Constitution MBRAS Monograph No 31 (2002) 163.

18 Fernando, ibid 162.

19 Federation of Malaya Constitutional Commission (1956–1957) Report para 169, reproduced in Kevin YL Tan and Thio Li-ann Constitutional Law in Malaysia and Singapore (Butterworths Asia 1997) 968. See generally Jaclyn Ling-Chien Neo ‘Malay Nationalism, Islamic Supremacy and the Constitutional Bargain in the Multi-ethnic Composition of Malaysia’ (2006) 13 International Journal on Minority and Group Rights 95.

20 Mahathir made this politically strategic statement to ‘out-Islamicise’ the PAS political party; his particular conception of the Islamic state would not include hudud (criminal) laws, which penalizes theft with amputation and adultery with stoning. See ‘Malaysia Recognised as Islamic Nation’ New Straits Times (Malaysia 11 Aug 2001) 4; ‘Islamic State Issue Dominates’ New Straits Times (Malaysia 27 Oct 2001) 6.

21 Daud bin Mamat & Ors v Majlis Agama Islam &Anor [2001] 2 MLJ 390.

22 Press Statement, Department of Statistics Malaysia, Population Distribution and Basic Demographic Characteristics Report: Population and Housing Census 2000 (6 Nov 2001) <http://www.statistics.gov.my> (date accessed 14 June 2005).

23 eg s 102(3) of Enactment 4/1994 of Kelantan state (Enakmen Majlis Agama Islam dan Adat Istiadat Melayu Kelantan) provides that if a Muslim intentionally attempts by his speech or conduct to convert out of Islam, the Syariah court may order his detention at the Islamic Education Centre for a maximum 36 month period, to educate the detainee and cause him to repent according to Hukum Syarak (Islamic law).

24 Lina Joy (n 13) 144. See Li-ann, Thio ‘Apostasy and Religious Freedom: Constitutional Issues Arising from the Lina Joy Litigation’ [2006] 2 MLJ i–cxvi.Google Scholar

25 The English summary referred to the offending article as Art 3(5)(v), while the Malay head-note refers to the offending article as Art 3(f)(v). The text of the judgment however refers to Art 3(i)(i): Meor (n 7) 375D and 376E.

26 Clause 3(h)(i), 1997 School Rules, Meor (n 7) 379E–F: A jubah is a flowing robe originating from Arabia commonly worn by religious Muslim leaders; the serban is a headdress worn by Muslim men consisting of a long scarf of linen, cotton or silk that is wound around a small cap or directly around the head; topi is a hat; ketayap is a skullcap; purdah is a veil worn to segregate women from men.

27 Ikhtisas Circular Letter No 9/1975, Meor (n 7) 378G–379A.

28 Meor (n 7) 376E, English Summary.

29 Rules of School Uniform Ikhtisas Circular Letter No 3/1983, Meor (n 7) 379F–380H.

30 Section 2.1.1.(i) of the Rules of School Uniform Ikhtisas Circular Letter No 3/1983: Meor (n 7) 379G, translated from Malay.

31 Section 2.1.1.(i) of the Ikhtisas Circular Letter No 3/1983 on School Uniforms of Pupils: Meor (n 7) 380B-C, translated from Malay.

32 Meor (n 7) 378D.

33 Meor (n 7) 378B-C. Art 12(1) FC states ‘Without prejudice to the generality of Art 8, there shall be no discrimination against any citizen on the grounds only of religion, race, descent or place of birth’.

34 Malaysia Ministry of Education <http://www.moe.gov.my/pusat_jab_pekeliling/ spi_bil9_1975.pdf> (date accessed: 2 Feb 2006)

35 This article focuses on the constitutional grounds raised, although there were also administrative law issues pertaining to the scope of delegated legislation and natural justice: Meor (n 7 ) 387D–E and 390A–D.

36 Meor (n 7) 377A–B, English Summary.

37 Meor (n 7) 390E–F.

38 Meor (n 7) 377A, English Summary.

39 Meor (n 7) 387I, translated from Malay.

40 See headnote of Meor appeal (n 9) 26B.

41 Meor appeal (n 9) 30I.

42 ibid (n 9) 31A-B.

43 V Anbalagan ‘Serban issue: Court allows appeal’ New Straits Times (23 Nov 2004 Malaysia) 1; L Lau ‘Malaysian court upholds turban ban for Muslim boys’ Straits Times (24 Nov 2004 Singapore) 1.

44 Quoting the commentary to the Constitution of India, Art 25. Religion, meaning of—(Words and [*16] Phrases—‘Religion’) [AIR 1954 SC 282 Vol 41 CN 68]: Meor (n 7) 381I–382B.

45 [1994] 3 MLJ 61 (Supreme Court).

46 The Service Circular No 2 of 1985 also prohibited civil servants from wearing jeans, slacks and shorts.

47 Hjh Halimatussaadiah (n 45) 62C–D.

48 ibid 71C.

49 ibid 71G-I; see also the High Court judgment, Halimatussaadiah v Public Services Commission, Malaysia [1992] 1 MLJ 513, 525E-F.

50 Meor appeal (n 9) 27I.

51 Meor (n 7) 388B–D.

52 Interview with Professor Zakaria Haji Ahmad, Universiti Kebangsaan Malaysia (Radio Singapore International 25 Nov 2004) <http://rsi.com.sg/english/newsline/view/ 20041125104823/1/.html> (date accessed: 15 May 2005): He opined: ‘I don't think the serban is part of the normal cultural headgear that you find in this part of the world.’

53 The lower court judge noted that when a Deputy Director of Student Affairs from the Education Ministry was asked why Sikh but not Muslim boys were allowed to wear turbans, in the absence of an express rule permitting or prohibiting turbans, he could not answer. Meor (n 7) 387I.

54 Meor (n 7) 389F.

55 ibid (n 7) 389G, translated from Malay.

56 ibid (n 7) 389E–G.

57 ibid (n 7) 389E–G, translated from Malay.

58 ibid (n 7) 389A–B, translated from Malay.

59 ibid (n 7) 388I, translated from Malay.

60 Apparently deploring the Malays’ lack of linguistic pride and the Muslims’ lack of religious pride.

61 Meor (n 7) 390D–H.

62 Fernando (n ) 130. Art 25 of the Indian Constitution expressly refers to the freedom of conscience and ‘the right freely to profess, practice and propagate religion’.

63 Constitution of India 1949, Ministry of Law and Justice <http://indiacode.nic.in/coiweb/ welcome.html> (date accessed 30 Jan 2006).

64 [2004] 2 LRI 39.

65 Meor appeal (n 9) 30G–H.

66 This contrasts sharply with the English approach in R v Governors of Denbigh High School [2005] All ER (D) 32; 2005 EWCA Civ 199, owing to the rights-based approach required by the Human Rights Act. Even if the issue in Meor was framed in a rights-oriented manner, serban-wearing would fall beyond Art 11, as there was no evidence showing this to be an essential religious practice.

67 Meor appeal (n 9) 27I.

68 ibid 30G.

69 ibid 30C–H.

70 V Anbalagan (n 43) 1.

71 Meor (n 7) 382B–D, translated from Malay.

72 ibid 387B–C. This was in addition to his finding that the school code banning serban was invalidly adopted by the schoolmistress.

73 Meor (n 7) 386A–D, translated from Malay.

74 ibid 387A–C, translated from Malay.

75 ibid 380I.

76 ibid 387C.

77 ibid 380I-381A–B.

78 ibid 381B, translated from Malay. Similar comments were made regarding female uniforms.

79 Meor (n 7) 385D–E, translated from Malay.

80 ibid 384H-I, translated from Malay.

81 Ibrahim, Ahmad ‘The Position of Islam in the Constitution of Malaysia’ in Suffian, Mohd et al. (eds) The Constitution of Malaysia: Its Development: 1957–1977 (OUP Oxford 1978) 49.Google Scholar

82 Federation of Malaya Constitutional Commission (1956–1957) Report, para 73, reproduced in Tan and Thio (n ) 968.

83 Meor (n 19) 385D–E, translated from Malay.

84 ibid 384I–385A

85 Meor (n 7) 385I, translated from Malay.

86 ibid 384F.

87 Art 160 defines a ‘Malay’ as a person ‘who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom’.

88 Art 152, FC.

89 Art 153, FC. The term bumiputra refers to Malays, the orang asli (indigenous people of Malaysia) and natives of Sabah and Sarawak who are considered to be the first peoples in Malaysia.

90 Meor (n 7) 384H.

91 A ceremony performed during solemnization of marriages.

92 Meor (n 7) 384G–H, translated from Malay.

93 eg during a 1958 Federal legislative council debate, Tunku Abdul Rahman stated that the Alliance ‘merely provide[s] that Islam shall be the official religion of the State’: Official Report of Legislative Council Debates, 1 May 1958; In 1984, he stated ‘Islam is the official religion of this country, but other religions have a right to play their part as far as religion is concerned’: Putra, Tunku Abdul Rahman et al. (eds) ‘The Role of Religion in Nation Building’ in Contemporary Issues on Malaysian Religions (Pelanduk Kuala Lumpur 1984) 25, quoted inGoogle ScholarAun, Wu MinThe Malaysian Legal System (2nd ednPearson Malaysia 1990) 156.Google Scholar

94 para 12, ‘Note of Dissent by Mr Justice Abdul Hamid’, in the 1956–7 Constitutional Commission Report, reproduced in Tan and Thio (n 19) 982.

95 The Alliance recommended the insertion of the following clause: ‘Islam shall be the religion of the State of Malaya, but nothing in this Article shall prevent any citizen professing any religion other than Islam to profess, practice and propagate that religion, nor shall any citizen be under any disability by reason of his being not a Muslim.’ (para 11, ‘Note of Dissent by Mr Justice Abdul Hamid’, in the 1956–1957 Constitutional Commission Report, reproduced in Tan and Thio (n 19) 982.)

96 Imam argues that secular may be understood in a limited sense as meaning ‘it does not derogate from the freedom to profess and practice religion of the non-Muslims’: DrImam, Mohamad ‘Freedom of Religion under Federal Constitution of Malaysia—A Reappraisal [1994] 2 CLJ lvii, lxviGoogle Scholar

97 Fernando (n 17) 162–3.

98 Rau, KV PadmanabhaFederal Constitution of Malaysia: A Commentary (Malaysian Current Law Journal Sdn Bhd 1986) 13.Google Scholar

99 As noted by Chief Minister Tunku Rahman: Fernando (n 17) 157, 161.

100 Wu (n 93) 154.

101 (1988) 2 MLJ 55; Meor (n 17) 383E–F.

102 Che Omar ibid 55B–C.

103 Meor (n 7) 384C–D, quoting from Che Omar, ibid 56A–B.

104 Che Omar ibid 56G–H.

105 Meor (n 7) 384A, translated from Malay.

106 Meor (n 7) 383F–H; Hudud and qisas are Islamic criminal laws.

107 Che Omar (n 101) 57B–C.

108 Meor (n 7) 384A–B.

109 Sheridan, LA ‘The Religion of the Federation’ [1988] 2 MLJ xiii, xiii.Google Scholar

110 Meor (n 7) 384C–F.

111 Dato Menteri Othman Baginda v Dato Ombi Syed Alwi bin Syed Idrus (1981) 1 MLJ 29.

112 Meor (n 7) 382H–I.

113 Che omar (n 101) 57–F

114 Halimatussaadiah v public Services Commission Malaysia [1992] I MLJ 513 [‘Halimatussaadiah’].

115 Meor (n 7) 383H–1, tanslated form Malay.

116 Meor appeal (n 9) 401–31B.

117 Bari, Adbul Aziz ‘Islam in the Feeral Constitution: A Commentary on the Decision of Meor Atiqulrahman’ [2000] 2 MLJ cxxix.Google Scholar

118 Bari ibid cxlii.

119 ibid cxlii.

120 Imam (n 96) Ixix, Ixx.

121 Imam ibid Ixxix.

122 ibid Ixxix.

123 Meor (n 7) 386A–D, translated from Malay.

124 [1989] I MLJ 418 (Supreme Court); see Bari (n 117) cxl.

125 Jamaluddin ibid 420C–D.

126 [1992] I MLJ 697.

127 Lina joy (n 9) cxli.

128 Bari argues the decision ‘could not fit into the history and character’ of the Federation and that the judge in Meor could have reviewed jamaluddin by expanding upon the Malaysian model of religious freedom: Bari (n 117) cxl.

129 Bari argues ‘it is really necessary to argue on the basis of Art 3 in order to assert the plaintiff's right to wear a turban’: Bari (n ) cxxxiv.

130 ] Merdeka University Bhd v Gobernment of Malaysia [1981] 2 MLJ 356.

131 Merdeka University Bhd v Government of Malaysia [1981]2 MLJ 356.

132 Bari (n 116) cxxxv.