SERBAN CASE: A BLOW TO FREEDOM OF RELIGION AND CHILD RIGHTS?

SERBAN CASE: A BLOW TO FREEDOM OF
RELIGION AND CHILD RIGHTS?

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 practice and profess one’s religion, and also the rights of the child.

Three human persons, sitting as judges of the Federal Court, made a decision on what they believed was what God required of its followers, in this case the religion of Islam.

When it comes to religion or to what God wants of us, I believe, it is ultimately a matter between the individual believer and his/her God. It is ultimately up to the omnipotent and omniscience God to judge as to what was right or wrong, what was mandatory and what is not.

I do not believe that God will accept reasons like “this is what the Malaysian government, or the Education Ministry or the courts decided as so as a citizen I did or did not do with regard the practice of my religion’ as a justification for a believer’s failings to do what God required of him/her.

Remember that even in the Nuremberg trials, the court did not accept the following of the orders of the then leader of the nation state or the orders of one’s immediate superiors as a justification or a defence for wrongful deeds down by the individual. Surely, God on judgment day, will also most likely not accept such reasoning.

I believe that ultimately one should leave it to the follower/believer of a religion to decide for himself as to what are his duties, obligations and responsibilities when it comes to God. No State, executive, administrative authority or court of law should generally interfere in one’s freedom to profess and practice one’s religion.

The only time that the community of people, the State or a court of law can justifiably interfere with how one practice and professes his religion or faith is when that practice interferes with the rights of other persons in the community or other peoples of different beliefs or is against the common good of the community of peoples.

The Serban Case
This case was about three children attending a government school wearing ‘serbans’(a Muslim headgear), who refused to stop using the serban despite being asked to do so on the basis that Regulation 3(i)(i) of their School Regulations 1997 prohibited pupils from wearing “jubah, turban (serban), topi, ketayap dan purdah”.

This “School Regulations 1977” was the Peraturan Sekolah Kebangsaan Serting (FELDA) 1997, meaning it was a regulation of just that particular school made apparently pursuant to a Circular of the Ministry of Education (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 parent (and presumably the 3 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 they refused to cease wearing the serban even on the threat of expulsion from school. They were finally expelled from this government school.

I cannot see how the wearing of a headgear, be it a turban or a serban or a ketayap, would in any way infringe of violate the rights of any other student or the community in the school. I cannot see how a serban would in any way affect the education of these 3 students, or the education of the other students. These 3 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 and/or their development.

It also seems that this “school regulation” and the said 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 practices) requires of them.

Reading the Federal Court judgment, it was humourous that the authorities suggested that the children remove the serban and wear another headgear, the songkok. Therefore, it was alright 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 was the more favoured headgear of those who supported PAS, the main Islamic opposition party, whilst the songkok was the preferred headgear for those in UMNO, the leading party in the Barisan Nasional, the ruling government of the day.

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 is talking 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 is 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, being a multi-religious community, we know and see that there are so many different schools, ‘mazhabs’, churches, inclinations and beliefs not only in Islam but also 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 constitute the integral beliefs of Christianity, which ultimately resulted in the Nicene Creed. When it comes to religion, safely we can only conclude on what are the core values – being mercy, compassion, justice, caring, human rights and peace – but it is near impossible to conclude on what are the integral practices, creed, cult or code of the believers of a religion or a faith.

Blind Acceptance of Government Propaganda is Dangerous
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 regard to how they perceived some aspects of the Malaysian reality.

For example, their comments about one of the missionary group(I believe that reference was about the Arqam), which the Malaysian government ultimately cracked down on using laws like the Internal Security Act (ISA).

“Then came 1970’s and the appearance of “dakwah” (missionary) groups. They distinguished themselves by their dress, the men and their male children wore “jubah” and “serban”. One such organization had been declared unlawful. We saw their top leaders confessing, crying and repenting over television”

I believe that this statement about “top leaders confessing, crying and repenting over television” is made forgetting that these ‘top leaders’ were arrested under the Internal Security Act (ISA) where over the years there has been evidence of torture that is inflicted on many victims of this draconian detention without trial law. Hence, the fact that these “top leaders” came out “confessing, crying and repenting over television” means nothing more than an indicator of how efficient the Malaysian police has 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 polarization amongst students is also disturbing. 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 Barisan Nasional government? In Singapore, their 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.

Racial and religious polarization has always existed in Malaysia, in the universities in particular from the mid-70s. For me, one of the reasons for the continuation of this polarization is the continued existence of race-based and religious-based political parties in Malaysia. To justify their continued political survival, these race and religious based parties will continue to propagate racial and religious sentiments and cultivate polarization. Malaysians want to see the end of polarization in Malaysia hopes that soon the emphasis will be on race and religion will end – and stress will only be on the fact that we are Malaysians, just Malaysians – not Malays, Chinese, Indians, Bumiputras, non-Bumiputras, Muslim, Christian, Hindus or any other race/ethnic/religious criteria.


The Best Interest of the Child SHOULD Be of Primary Consideration
Three boys – three children wanting to wear 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 polarization, or something that will propagate polarization.

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 regard to socio-economic and political thought but also the way in which we are to profess and practice our religion. This trend is dangerous and will not be for the future good of Malaysia.

These three children were expelled from school, deprived of their right to education in a national school all because of some “school regulation” about wearing of a serban, which they wore because of their religious belief. Of course, for most persons, God’s will supersede man-made laws – and so, I will say that it was not so much the parent that is to be blamed but that school, the Education Ministry and the government. 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 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.“

Was the best interest of Meor Atiqulrahman Bin Ishak,
Syed Abdullah Khaliq Aslamy Bin Syed Ahmad Johari, And Syed Ahmad Syakur Dihya Bin Syed Ahmad Johari the primary consideration of the school, the Education Ministry, the Government of Malaysia and the Courts of Law?

In their judgment, the Federal Court also went on to criticize the father of these children for what happened, whilst generally stating what children should be doing - that is, “attending school, study and play with other students, obey the school discipline, respect their teachers” and then comparing as to what the children ended up doing, that is “being different from other students, disregard the school regulations, disobey the teachers, rebel against the authorities”. Let us not be too simplistic here for disobedience, rebellion, criticism, rebellion and protest also important virtues that serve to check wrongdoings, bad laws, abuse of powers, injustices and violations of human rights. Teaching a student to be a unthinking conformist and an obedient follower is not for the good of the child. The father of these children did teach his children the importance of standing firm for your beliefs, and not just accepting quietly something that they believe is wrong. It may be argued that this parent may have thought his children something far more important that had he just conceded to that “school regulation” and asked his children to remove their ‘serban’.

At the end of the day, we have to ask ourselves whether the Federal Court had acted justly – based on principles of justice and had not just made a judgment because they did not want to “rebel against” or “disobey” the authorities and the government of the day. Let us also note that judges, many a time, decide on the basis of the points and arguments before them – and that decision may have been different if they did consider some of the points raised here, especially the point that today in Malaysia, the best interests of the child should have been the primary consideration more so since Malaysia has ratified the Child Rights Convention in 1995.

The Federal Court Judgment: Maybe Not All That Bad BUT…
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 not an “Islamic state” but then the question remain as to whether justice was done for these 3 children who were expelled because they did not want to remove their ‘serban’, a headgear worn by them because they believed their religion required them to do so.

We must also ask ourselves again whether it is not a violation of the constitutionally guaranteed freedom of religion for a school, Ministry or government to come out with such regulations or rulings that will prevent the wearing of certain headgears, markings or other articles that a particular religion requires of its followers to wear.

Charles Hector
16th July 2006