Ten years ago, Meor Atiqulrahman Ishak, and brothers Syed Abdullah Khaliq Aslamy Syed Ahmad Johari and Syed Ahmad Syakur, then just aged 9, 7 and 6 respectively, were expelled from Sekolah Kebangsaan Felda Serting in Negeri Sembilan for refusing to take off their serban during classes.
The serban is a turban worn by Muslims. In Indonesia, the phrase ‘sudah memakai serban’ or 'has donned the turban' means that the person referred to has already made the hajj (pilgrimage to Mecca).
In expelling the 3 kids, the Education Ministry invoked a school regulation that prohibited pupils from wearing the jubah (long flowing Arabic robe), serban (turban), topi (hat), ketayap (hajj cap or yarmulke) and purdah (burqa) during school hours. Other than the topi, the items are various forms of traditional dressing worn by Middle Eastern Muslims.
The boys’ father, Syed Ahmad Johari Syed Mohamed filed a suit at the Seremban High Court in 1997, averring that the school’s decision was unconstitutional as it violated the boys’ right to freedom of religion as stipulated under Article 11(1) of the Federal Constitution.
Two years later the High Court nullified the expulsion order after ruling that the headmistress did not have the authority to expel the boys. But the Court of Appeal subsequently overturned the High Court judgment after rejecting arguments by the students' lawyers that the wearing of the serban was part of Islam, which the constitution allowed freedom to practise.
The case then went before the country's highest court, the Federal Court, which ruled yesterday that the serban was not an integral part of Islam. Thus, the school’s decision to suspend the three students did not affect their freedom of religion.
In his written judgement, Justice Abdul Hamid Mohamed disagreed with the plaintiffs’ counsel that the right to wear the serban was part of ‘Islamic prophetic teaching’, even though the practice is not mandatory in Islam.
He pronounced: “As far as I can ascertain, the al-Quran makes no mention about the wearing of a serban. I accept that the Prophet (pbuh) wore a serban. But he also rode a camel, built his house and mosque with clay walls and brushed his teeth with the twig of a plant.”
“Does that make the 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 (pbuh) and the same architecture adopted by him during his time?”
" It is not everything that the Prophet (pbuh) did or the way he did it that is legally or religiously binding on Muslims or even preferable.”
"The question is whether the wearing of turbans by boys of the age of the appellants is a practice of the religion of Islam. The pagan Arabs wore turbans and kept beards. It was quite natural for the Prophet (pbuh), born into the community and growing up in it, to do the same.”
What the judge alluded to was that the personal appearance and dressing of the Prophet (pbuh) was a reflection of his community's culture rather than Islamic teachings. In fact, according to the judge, the serban and wearing of beards were inherited from practices already established by pagans. An interesting point, your honour.
Justice Abdul Hamid described the father of the brothers as angkuh (arrogant). He said Syed Ahmad Johari Syed Mohamed wanted the three appellants to wear the turban to school because the serban was the 'family’s emblem.'
Don't they term that sort of attitude as hubristic? From the judge's comments, it would seem the father was attempting to flaunt his family's Islamic credentials by making his sons adopt the serban. If he had claimed that the serban has been his 'family's emblem', then that surely would be a case of conceited and swaggering holier-than-thou exhibitionism rather than sincere religious piety?
But as a consoling mention, the judge said that the serban was not completely prohibited in the school.
“We are not dealing with a total prohibition of the wearing of the serban. The primary school students of the school are only not allowed to wear the serban as part of the school uniform during school hours.”
“They are not prevented from wearing the serban at other times. They would not be prevented from wearing the serban when they perform, say, their Zohor prayers in the school ‘surau’ (prayer room).”
“Our educationists, with their experience in dealing with students on the ground, should be given some respect and credit when they formulate some regulations applicable in their schools for the general good of all the students, the society and later the nation.”
This ruling while it does not make things clearer on the secularity of the constitution, at least set a percedence that in some cases the Federal court can decide what is Islamic or not, giving the Federal Court rights to stop Islam encroahment on some issues.
ReplyDeleteIts a small step but with all these crazy ideas floating around about how secularity is just and opinion of our founding fathers and not constitutional, its some good news.
I believe we must be clear about what the judge and his colleagues were judging, that the plaintiff's right to freedom of religious practice was not infringed upon - which is a secular and constitutional issue, and not an Islamic matter.
ReplyDeleteBecause the judge so happens ;-) to be a Muslim, he was able to draw upon his own understanding of what Islamic practice consisted of, he could confidently ruled that wearing the serban was not one of them. He could have consulted Islamic experts too.
But the ruling was on a secular constitutional matter. The rights of the Syariah Court was not infringed upon.
But you're right, that the learned judge and his colleagues have balls.
Damn silly, dont they know that Arabism is not Isamic>
ReplyDelete