Saturday, July 15, 2006

The Serban Case: Judge: Give credit to educationists in drawing up rules for good of all

The Serban Case: Judge: Give credit to educationists in drawing up rules for good of all
Thursday, 13 July 2006, 09:08
©New Straits Times (Used by permission)
By A. Hafiz Yatim

PUTRAJAYA: The country’s highest court handed down a significant decision yesterday, ruling that authorities acted within the law in stopping students from wearing turbans during school hours.

It also endorsed moves by the Government to preserve Malaysia’s multi-racial and multi-religious make-up.

Before the Federal Court was a challenge by three Muslim boys — then aged between eight and 11 — to the Education Ministry’s no-turban-with-uniform rule, which they claimed was unconstitutional. (Click here to read the full judgment)

Delivering the judgment, Federal Court Judge Datuk Abdul Hamid Mohamad wrote that Malaysians had to accept a fact about the country:

"She is multi-racial, multi-cultural, multi-lingual and multi-religious.

"By any standard, Malaysia’s success has been miraculous in terms of unity, peace and prosperity.

"Whatever other factors had contributed to it, we cannot ignore the educational system that had helped mould the minds of Malaysian boys and girls to grow up as Malaysians.

"Recently, we’ve heard about the polarisation of students in universities not only on racial and religious grounds but also among Muslim students themselves.

"The polarisation was considered serious and even a dangerous trend...

"Of course, such polarisation did not begin the moment the students stepped on campus. The seeds were sown and they grew while they were in school.

"Our educationists, with their experience in dealing with students on the ground, should be given respect and credit when they formulate regulations applicable for the general good of the students, society and nation," he said, dismissing the appeal by the three students.

The three — Meor Atiqulrahman Ishak and brothers Syed Abdullah Khaliq Aslamy Syed Ahmad Johari and Syed Ahmad Syakur — were expelled from Sekolah Kebangsaan Felda Serting in Negri Sembilan on Nov 10, 1997 for refusing to shed their turbans.

They filed a summons through their guardian and father, Syed Ahmad Johari Syed Mohamed, naming the headmistress, Fatimah Sihi, the secretary-general of the Education Ministry and the Government as respondents.

Seremban High Court judge Datuk Mohamed Noor Abdullah on Aug 6, 1999 nullified the expulsion order after ruling that the headmistress did not have the authority to expel them but the ruling was set aside with costs by the Court of Appeal on Nov 22, 2004.

They then appealed against this decision to the Federal Court.

Hamid said the issue before the court was whether or not the School Regulations 1997, which prohibit the wearing of the turban as part of the school uniform during school hours, violate the Federal Constitution.

The appellants argued that the Constitution guaranteed their right to profess and practise their religion.

"I’m of the view that whether a practice is or is not an integral part of a religion is not the only factor that should be considered," Hamid said.

The court should also consider the importance of the practice in relation to the religion, said the judge, and if the practice was of a compulsory nature or an integral part of the religion, it should be given more weight.

"Prohibition of a practice which is wajib (mandatory) should definitely be viewed more seriously than the prohibition of what is sunat (commendable)," he said.

Hamid said the second factor considered by the court was the extent of the prohibition imposed by the regulations.

"The students are not allowed to wear the turban as part of the school uniform. They are not prevented from wearing the turban at other times.

"Even in school, they would not be prevented from wearing the turban when they perform, say, their Zohor prayers in the prayer room.

"Should they be allowed to wear the jubah (robe) when playing football because it was the practice of the Prophet to wear the jubah? Certainly, there is a place for everything," he said.

Hamid said that the practice of wearing a turban was of little significance from Islam’s point of view, more so in relation to young boys.

He noted that there was no mention about the wearing of a turban in the Quran.

"I accept that the Prophet wore a turban.

"But he also rode a camel, built his house and mosque with clay walls and a roof of leaves of date palms, and brushed his teeth with the twig of a plant," Hamid said in the judgment, delivered by Federal Court Deputy Registrar Kamaruddin Kamsun.

"Does that make riding a camel a more pious deed than travelling in an aeroplane?

"Is it preferable to build houses and mosques using the same materials used by the Prophet and the same architecture adopted by him during his time?"

Sitting with Hamid were Court of Appeal President Tan Sri Abdul Malek Ahmad and Chief Judge of Sabah and Sarawak Tan Sri Steve Shim Lip Kiong.

Meanwhile, Syed Ahmad Johari, 48, claimed a moral victory despite the defeat in the courtroom.

"I feel that this is still a victory for Islam as the case managed to reach the apex court and our cause has been highlighted," he said.

Two of the appellants, Meor Atiqulrahman and Syed Abdullah Khalid Aslamy, have become hafiz, having committed the entire Quran to memory.

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