| Serbans case: The appellants' written submission |  |
Sat | Mar 11, 06 | 01:52:29 PM Oleh Mohamed Hanipa Bin Maidin 
. INTRODUCTION
1. Let me begin my argument by inviting Yang Arif to look at page 219 of the Appeal Record i.e the photo of the Appellants wearing their school uniform when they were expelled from school by the First Respondent. The only different between the Appellants and other students at that school was that the former were wearing a serban apart from the usual school uniform.
2. What the Appellants were doing if I may draw an analogy is equivalent what Haji Sulaiman Abdullah, one of the Malaysian prominent lawyer, has been doing that is being a lawyer he is wearing what other lawyers do except that he is having his serban on his head . In doing this Haji Sulaiman is in fact exercising his religious practices and hitherto he has not been asked to remove his serban for the same is protected by Article 11 ( 1 ) of the Federal Constitution ( FC ). So the same applies to the Appellants.
B. FACTS OF THE CASE
3. The facts of this case may be summarized as follows :-
4. The first , second and third Appellants were male students in a primary school aged eleven , nine and eight respectively. They had been expelled from school by the First Respondent, who was the headmistress of Sekolah Kebangsaan Serting Hilir, Negeri Sembilan ( the school ).
5. Prior to that the First Respondent , in a letter dated 4/8/1997 addressed to the guardian of the first appellant requested the Appellants to stop wearing serbans to school. However the Appellants continued to wear it .
6. Throughout the months of August and September that year the First Respondent repeatedly ordered the Appellants to stop wearing the serban but the Appellants did not budge on the ground that was the tradition of the Holy Prophet Muhammad ( s.a.w ). Consequently by a letter dated 3/11/1997 the First Respondent issued a letter dismissing the Appellants from school.
7. The Appellants in their statement of claim pleaded that the action taken by the Respondents was contrary to the provisions of the Federal Constitution on the right to freedom of religion and the prohibition for discrimination on the basis of religion , race , creed and place of birth.
C. ISSUE IN THIS APPEAL
8. This appeal deals only with one issue and the issue is as stated in the Appellants' Memorandum of Rayuan . May I humbly invite Yang Arif to look at page 2 -3 of the Rekod Rayuan
9. This case deals with freedom of religion enshrined in Art 11 ( 1 ) of the Federal Constitution.
10. Based on Art. 11 ( 1 ) FC every person has the following rights ,viz;.
• Right to profess
• Right to practice
< • And subject to Art 11 ( 4 ) of FC to propagate his religion.
[ please see at page 64 of the Appellants' Additional Bundle of Authorities ( ABOA ) ]
11. It is interesting to note here Yang Arif that freedom of religion under art 11 ( 1 ), unlike freedom of speech or assembly enshrined in art 10, is not only confined to citizens but also to every person and such fundamental right is so sacred and entrenched in the FC so much so even during an emergency the right of a person to freedom of religion cannot be touched or restricted - ( Please see Art 150 ( 6A ) of the FC at page 70 of ABOA )
12. Art 150 ( 6A ) provides that " Clause ( 5 ) shall not extend the powers of Parliament with respect to any matter of Islamic law or the custom of the Malays, or with respect to any matter of native law or custom in the State of Sabah or Sarawak, nor shall Clause ( 6 ) validate any provision inconsistent with the provisions of this Constitution relating to religion , citizenship, or language.
13. It is our humble submission Yang Arif that the rule prohibiting students from wearing serban is violative of Art 11 ( 1 ) of the Federal Constitution ( FC ). The relevant impugned rule may be found at page 317 ( from page 313 ) of the Rekod Rayuan
14. For the purpose of this appeal the related right is on the right to practice one's religion. But Article 11 ( 1 ) uses the phrases "profess and practice" . Thus it is submitted that the word profess and practice must be read together .
15. The right to practice one's religion we submit includes every religious practices which have some basis or become part of that religion whether they are mandatory or otherwise
16. The right to practice one's religion which is protected under Art 11 ( 1 ) of FC can only be restricted if by exercising such rights it affects public order , public health and public morality enshrined in Art 11 ( 5 ) of the FC.
17. Art 11 ( 5 ) provides that " This Article does not authorize any act contrary to any general law relating to public order, public health or morality."
18. It is also our humble submission that the right to wear serban even though is not mandatory is part of Islamic and prophetic teaching. In this respect we would like to refer at the evidence of SP 3 at page 155 – 159 of the Rekod Rayuan )
19. SP 3 inter alia testified that " Hukum pakai serban sunat iaitu tidak wajib. Orang beriman sepatutnya membenarkan pakaian serban terutama dalam masyarakat majmuk di mana kaum sikh umpamanya dibenarkan memakai serban. Sunnah itu dianggap sebagai ibadah tuntutan agama yang kita wajib beriltizam. ( see at page 157 of RR )
20. In other words it is part of religious practices enjoined by Islam. Be that as it may this right has to be jealously protected and under the FC it is guaranteed by virtue of Art 11 ( 1 ) of the FC.
D. WHAT THE COURT OF APPEAL SAID IN RESPECT OF ARTICLE 11 ( 1 ) ?
21. It is humbly submitted that the learned Judges of Court of Appeal ( CA ) erred in their judgments when they decided that the Respondents had acted entirely in accordance with the Constitution when they expelled the Appellants from school for wearing serban. ( see at page 21 of Rekod Rayuan )
22. It is not disputed in this case that the wearing of serban has religious basis from Islamic point of view. In other words it is part of religious practices as far as Islam is concerned. Such being the case this religious practice is protected and guaranteed under Art 11 ( 1 ) of the FC and this practice could only be restricted under 11 ( 5 ) .
23. The Court of Appeal, with due respect, was clearly wrong when it decided that only the 'integral or essential parts" of religion are protected by Art 11 ( 1 ) of the FC. ( May I humbly refer Yang Arif at page 13 ( para 4 ) ; page 21 ( para 14 ) of the Rekod Rayuan ) .
24. Yang Arif , if this interpretation is accepted it means that only the integral religious practices are guaranteed under Art 11 ( 1 ) of the FC whereas the word `integral` part is nowhere in Art 11 ( 1 ).
25. And the problem will also arise if we accept this restrictive interpretation because under Art 11 ( 1 ) there are three rights available to a person as far as freedom of religion is concerned and these rights are the right to profess, practice and propagate.
26. If only the integral part of religion may be practiced the same is also applicable to one`s right of professing and propagating his religion . In other words , by applying the CA`s interpretation a person may only profess, practice and propagate the integral/ essential part of his religion . This will create a lot of problems to religious adherents particularly the muslims
27. Let me give one example i.e the case of prayer in Islam. In Islam there are mandatory prayer and there are recommendatory ones ( the muslims call them sunnat prayer where the numbers of sunat prayers are more than obligatory prayers ). If we follow the CA's interpretation the muslim's rights of professing and practicing prayers is only confined to obligatory prayers under Art 11 ( 1 ) whereas the recommendatory prayers are not protected under Art 11 ( 1 ) .
28. And the other problem with this interpretation is that it begs for other interpretation of the word integral ! Who determines such and such religious doctrines/practices are integral/essential or non integral/non essential ? and on what basis ?
29. By interpreting right to practice of one's religion to be confined only to the 'integral" or mandatory part of religion" the Court of Appeal, we submit, in actual fact is rewriting Article 11 ( 1 ) or putting a new or an extra/additional restriction on the right to profess and practice one's religion apart from the existing restrictions contained/enshrined in Article 11 ( 5 ) of the FC . Such rigid interpretation had unduly caused the Appellants to be subjected to additional restriction apart from the existing restrictions under art 11 ( 5 ) of the FC. This , we submit , should not be allowed.
30. What the court of appeal did in this case, in actual fact , with respect , is that it had embarked on something beyond its power i.e interpreting the religion and in this case is the religion of Islam.
31. The Court of Appeal in reality had sent a message to any religious adherents in this country that you are prohibited from professing, practicing and propagating non essentials of your religion even such practices are recognized by your religion. In other words the CA is saying ` Ok, your religion may allow you to profess , practice and propagate your religious teachings but they must go through our screening/ filter process . If that religious practices are mandatory/essential, yes you pass our screening test if otherwise we are sorry you are prohibited."
32. Prof, Dr Shad Saleem Faruqi , a leading constitutional expert in this country said in his article " Secularism or Theocracy – A Study of the Malaysian Constitution"
" In respect of religion , every person has the right to three things :
• to profess
• to practice
• and , subject to Article 11 ( 4 ) , to propagate his religion : Article 11 ( 1 )
The first refers to beliefs and doctrines, The second refers to exhibition of these beliefs through acts, practices and rituals. The third is about attempts at propagation , The right to beliefs and doctrines is generally regarded as absolute. The last two aspects are, subject to regulation on grounds of public order, health , morality etc
Does freedom of religion extend only to those practices and rituals that are essential and mandatory, or does it also cover practices that are non essential and optional ? Halimatussaadiah v PSC ( 1992 ) 1 MLJ 513 implies that a non mandatory ( like wearing purdah ) is not protected by Article 11. The case also distinguished between beliefs and practices. The latter may regulated if they lead to public disorder. Affect public health or public morality. However , Meor Atiqulrahman Ishak v Fatimah binti Sihi ( 2000 ) 5 MLJ 375 correctly holds that the constitutional freedom extends to practices ( like waering a serban ), which , though not mandatory, are part of the religious tradition. ( see at page of the Appellants Bundle of Authorities ( BOA )
33. It is our submission Yang Arif that the Court Of Appeal should not unduly wary to allow a person to practice his/her religion be it an integral/essential part or non integral/non essential part as the freedom of practicing one's religion, like other freedoms enshrined under FC is not absolute. The right to freedom of practicing one's religion is constitutionally restricted under Art 11 ( 5 ) of the FC.
34. What happened in this case was that the CA was heavily influenced by the Indian authorities in interpreting Art 11 ( 1 ) of the FC without considering Art 11 ( 5 ) and/ or the decision of the then Supreme Court in the case of Minsiter For Home Affairs & Anor v Jamaluddin bin Othman ( 1989 ) 1 MLJ 418
35. It is humbly submitted that the proper and correct test in interpreting the phrase ' right to profess and practice his religion' in Art 11 ( 1 ) is as stated by the then Supreme Court in Minsiter For Home Affairs & Anor v Jamaluddin bin Othman ( 1989 ) 1 MLJ 418 i.e " the guarantee provided by Art 11 of the Constitution i.e freedom to profess and practice one's religion , must be given effect unless the actions of a person go well beyond what normally be regarded as professing and practicing one 's religion".
36. It is unthinkable to suggest that the Appellants' act of wearing serban, which derived its basis from the prophetic tradition ( hadith ), went beyond what normally be regarded as professing and practicing one's religion
37. It was very unfortunate that the CA failed at all to refer to the case of Jamaluddin bin Othman ( supra ) in their judgment and this , we submit, amounts to non direction by the CA and be that as it may, we humbly submit ,that non direction was fatal and it warrants this court's interference.
38. Speaking about heavily relying on other countries' constitutions in interpreting our constitution, as what the Court of Appeal unfortunately did, Y.M Justice Raja Azlan Shah had this to say i.e in the case of Loh Kooi Choon v Government of Malaysia ( 1977 ) 2 MLJ 187
" Whatever may be said of other constitutions , they are ultimately of little assistance to us because our Constitution now stands in its own right and it is in the end the wording of our Constitution itself that is subject to be interpreted and applied , and this wording " can never be overridden by the extraneous principles of other Constitutions" – see Adegbenro v Akintola & Anor . Each country frames its constitution according to its genius and for the good of its own society. We look at other Constitutions to learn from their experiences and from a desire to see how their progress and well being is ensured by their fundamental law." ( see at page 90 of the Appellants ABOA )
39. Prof Mohammed Imam in his brilliant article entitled " Freedom of Religion Under Federal Constitution of Malaysia – A Reappraisal ( 1994 ) 2 CLJ lxvi commented that
" The Indian Supreme Court has also made the distinction between "essential part of religion" and superstitious beliefs and unessential accretion to religions' but that was in the context of specific provisions of Article 25 ( 2 ) of that Constitution which permitted regulations or restrictions on economic , financial , political and other secular activities associated with religious practices , and for social welfare and reform. That question does not arise under Article 11 of the Federal Constitution, as no specific provisions are contained in it. Certain religious practices amongst Hindus and Chinese ( Taiosm, Confucious, Ancestor Worship ) e.g Sin Chew may have their basis in superstitious , yet they all will be protected by Article 11 ( 1 ) provided they are regarded as religious practices by that respective religion . Parliament's power to derogate from the right to religious freedom by a general law on grounds of public order, public health and morality extends to every aspect of religion and religious practices, be they the essential part , unessential accretion or superstitious."( please refer at page 17 of the Appellants' ABOA )
40. Prof Imam also said in the same article that " Unlike what the Indian Courts have been doing, there is no scope under Article 11 for the state to regulate , control or restrict religious practices , regarded by that religion as part of the religion on grounds of their being practices secular, superstitious, extraneous and unessential accretion to religion because by the express term of Article 11 ( 5 ) , the freedom of religion could be subject only to 'any general law relating public order, public health or morality. ( see at page 20 of the Appellants' ABOA )
41. It is also germane to state here Yang Arif that our Federal Constitution is not similar to Indian Constitution. So the court should be very cautious and meticulous in relying upon Indian authorities. In India , the Preamble to the Constitution categorically declares India to be a secular state. There is no official state religion in India ( see at page 59 of The Appellant's BOA ). On the contrary Article 3 of the FC provides that Islam is the religion of the Federation ..
42. The ambit of the positive obligations cast on the Federation by Article 3 , according to Prof Imam in his article , to defend , protect , and promote the religion of Islam and facilitate and enable Muslims its practices ( see Prof Imam"s article at page 11 of the Appellants' ABOA ).
43. Prof Imam also said in his article that " Art 3 is not a self executory provision. It only imposes a general obligation upon the Federation to protect, defend, safeguard the Islamic religion, assist , enable and facilitate Muslims to practice Islam , and give effect to or enforce Islamic injunction , spiritual and mundane alike , as far as it is capable of as a juristic person acting through its human agent using the coercive power at its command. This obligation is dischargeable by appropriate state action ,viz legislative, executive, administrative , judicial , quasi judicial etc and the Muslims have the legitimate constitutionally created interest , as distinct from judicially enforceable right, to secure such a compliance. Article 3 being subject to the other provisions of the Constitution ( Art. 3 ( 4 ) , any such state action should steer clear of other constitutional provisions , the most significant of such provisions is Article 11 freedom of religion of not only non Muslims but also of the Muslims." ( see at page 13 of the Appellants' ABOA )
44. So the right approach in dealing with freedom of religion under Art 11 ( 1 ) of the FC is to
A. first , identify as to whether what is practiced by a person is part of his religious doctrine .
B. and if such practice is part of that religion/ or enjoined by that religion, than it must be jealously guaranteed and protected by the court under art 11 ( 1 ) irrespective whether it is an integral or essential part or otherwise unless by practicing it offends Art 11 ( 5 ) of the FC
45. Sadly speaking in interpreting Art 11 ( 1 ) the Court of Appeal, with respect, failed at all to look into or consider Art 11 ( 5 ) of the FC and decided whether by exercising their rights under Art 11 ( 1 ) to practice their religion the Appellants were proven to have jeopardized public morality , public health or public order enshrined under Art 11 ( 5 ) of the FC .
46. If the Court of Appeal really considered the evidences adduced in this case it would certainly make a finding that there was no iota of evidence whatsoever that the Appellants' act of wearing of serban had caused public disorder or affected public health or morality thus caught by Article 11 ( 5 ) of the FC. In fact on the contrary the facts and evidences in this case had shown that the Appellants were a bright students and had no records of causing any disciplinary problems .
47. The Court of Appeal , with respect, was also wrong in interpreting the phrase " ' right to practice" in Article 11 ( 1 ) rigidly whereas the Constitution unlike other legislations should be interpreted broadly and with less rigidity and an interpretation leaning towards protecting fundamental rights and liberties of a person should have been adopted by the CA.
48. Justice Edger Joseph Jr ( SCJ ) clearly stated in the case of Dewan Undang Negeri Kelantan & Anor v Nordin bin Salleh & Anor ( 1992 ) 1 MLJ 697 that
" in construing constitutional documents it is axiomatic that the highest motives and the best of intentions are not enough to displace constitutional obstacles. Whenever legally permissible the presumption must be to incline the scales of justice on the side of the fundamental rights guaranteed by the Constitution , enjoying as they do, precedence and primacy" ( see at page 20 of the BOA )
49. In the same case , the then Lord President Justice Abdul Hamid Omar also held that
" In testing the validity of the state action with regard fundamental rights, what the court must consider is whether it directly affects the fundamental rights or its inevitable effect or consequence on the fundamental rights is such that it makes their exercise ineffective and illusory." ( see at page 17 ( held 1 ) of the Appellants' BOA )
He further held that
" A constitution should be construed with less rigidity and more generosity than other statues and as sui juris, calling for principles of its own , suitable to its character but not forgetting that respect must be paid to the language which has been used."
50. Y.M Raja Azlan Shah J in the case of Loh Kooi Choon v The Government of Malaysia ( quoted by Justice Gunn Chit Tuan SCJ in Nordin's case ) held that
" As fundamental rights are not the same as ordinary rights, they can only be suspended or abridged in the special manner provided for in the Constitution ." ( see at page 36 of the Appellants' BOA )
51. By rigidly interpreting the right to profess and practice one's religion in Art 11 ( 1 ) of the FC the inevitable consequence of that is that it renders the right to profess and practice one's religion enshrined in Art 11 ( 1 ) of the FC ineffective and illusory."
52. In The Queen on the Application of SB v Headteacher And Governors of Denbigh High School ( 2005 ) EWCA Civ 199 whereby the case dealt with Article 9 ( 1 ) of European Conventions of Human Rights ( UCHR ) which provides that
" Everyone has the right to freedom of thought , conscience and religion , this right includes freedom to change his religion or belief , and freedom …in public or private to manifest his religion or belief
53. The facts of the case were that the appellant, a female muslim student had applied for judicial review of a decision of the Headteacher and Governors of Denbigh High School, Luton who had refused to allow her to attend the School if she was not willing to comply with their school uniform requirements. So the case was concerned with the School's uniform requirements for girl.
54. Lord Justice Scott Baker said in that case
" As Brooke L.J has pointed out, there are two different views in the Muslim community about the appropriate dress for women one , held by very strict Muslims, being that it is mandatory for women to wear jilbab. The fact that this view is held by a minority, or even a small minority in my judgment nothing to the point in considering the issue whether Article 9 ( 1 ) is engaged. There is in my view force in the criticism that it is not for the school authorities to pick and choose between religious belief or shades of religious belief.
… every shade of religious belief , if genuinely held, is entitled to due consideration under Article 9 . .. ( see at page 54 of the Appellants' ABOA )
E. IS THE DECISION OF HJH HALIMATUSSAADIAH V PUBLIC SERVICES COMMISSION , MALAYSIA ( 1994 ) 3 MLJ 61 STILL A GOOD PRECEDENT/LAW IN RESPECT OF ARTICLE 11 ( 1 ) OF THE FC
55. The Court of Appeal had also relied on the case of Halimatusaadiah ( supra ) in holding that the Appellants' constitutional right was not jeopardized despite being prohibited from exercising their religious practices.
56. With the greatest respect , it is our humble submission that the decision of Halimatusaadiah no longer represents a good law as far as the interpretation of Article 11 ( 1 ) is concerned.
57. It is our respectful submission that the Supreme Court in that case , in affirming or upholding the decision of Justice Eusoff Chin ( as he then was ) of the High Court , was applying a wrong test in interpreting Article 11 ( 1 ) particularly in respect right to practice one 's religion as rightly pointed out by Encik Zainur Zakarian in his article "Religious Freedom – Right To Wear The Purdah ( 1993 ) 3 MLJ xxv that
" Instead of looking to see whether the act of the Plaintiff by wearing the purdah militated against or violated art 11 ( 5 ) of the Constitution , the learned Judge instead looked the other way around to see if the conditions imposed by the circular militated against or violated art 11 ( 5 ).
58. Prof Dr Aziz Bari, another constitutional expert, had also criticized the decision of Halimatusaadiah in his book " Islam Dalam Perlembagaan Malaysia" at page 124 & 125 of the said book when he said
" Dalam Hajah Halimatusaadiah , seorang kakitangan awam yang mengenakan tutup muka ( purdah ) telah dibuang kerja kerana dianggap mengengkari pekeliling yang melarangnya berbuat demikian. Kakitangan tersebut menyaman kerajaan di Mahkamah dan menghujah bahawa larangan tersebut menafikan haknya untuk mengamalkan ajaran agamanya . Mahkamah tidak menerima hujah ini kerana Mahkamah berpendapat bahawa purdah tidak diwajibkan oleh ajaran Islam. Ini agak meragukan : apa kaitan antara kebebasan beragama dengan wajib atau tidaknya sesuatu amalan yang bersumberkan kepada agama ? Adalah dicadangkan bahawa keputusan ini menimbulkan persoalan kerana soal wajib atau tidaknya purdah itu adalah soal yang lain. Yang jelas purdah tidak menyalahi ajaran Islam. Sesetengah pendapat malah menyatakan bahawa pemakaian purdah , dalam keadaan tertentu , boleh menjadi wajib. Dengan kata lain , memakai purdah adalah sebahagian daripada ajaran Islam. Denga itu adalah dicadangkan bahawa menafikan seseorang memakai purdah mempunyai kesan menafikan seseorang mengamalkan sesuatu daripada ajaran agamanya dan dengan demikian bertentangan dengan hak yang diberikan Perlembagaan Persekutuan.
59. Prof, Dr Shad Saleem Faruqi , a leading constitutional expert in this country indirectly commented the correctness of Halimatussadiah in his article " Secularism or Theocracy – A Study of the Malaysian Constitution" when he said that
" Does freedom of religion extend only to those practices and rituals that are essential and mandatory, or does it also cover practices that are non essential and optional ? Halimatussaadiah v PSC ( 1992 ) 1 MLJ 513 implies that a non mandatory ( like wearing purdah ) is not protected by Article 11. The case also distinguished between beliefs and practices. The latter may regulated if they lead to public disorder. Affect public health or public morality. However , Meor Atiqulrahman Ishak v Fatimah binti Sihi ( 2000 ) 5 MLJ 375 correctly holds that the constitutional freedom extends to practices ( like waering a serban ), which , though not mandatory, are part of the religious tradition.
60. Last but not least it is our humble submission that the court's duty is to interpret the Constitution and this case the provision of Article 11 of the FC and not to interpret the religion. In this regard it is germane to cite here what the European Court's of Human Rights ( at page 46 of the Appellants ABOA )
" The court recalls that , for every exceptional cases, the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the state to determine whether religious beliefs or the means used to express such beliefs are legitimate."
61. In one case decided by Zimbabwean Supreme Court i.e the case of Re Chikweche ( 1995 ) 2 LRC 93 it was held that
" Freedom of conscience and religion had to be broadly construed to extend to conscientiously held beliefs whether grounded in religion or secular morality. The wearing of dreadlocks was a symbolic expression of the beliefs of Rastafarianism , which had the status of a religion in the wider and non technical sense , or in any event was a system of belief founded on personal morality. The court was not concerned with the validity or attraction of Rastafarian beliefs , but only with the sincerity with which they were held …
The applicant's manifestations of his religion by the wearing of dreadlocks fell within the protection of freedom of conscience afforded by s 19 ( 1 ) of the Constitution….
He was forced to choose between adherence to the precepts of his religion , which meant foregoing the right to practice the profession he had chosen , or sacrificing an important edict of his religion in order to be able to practice and it followed that the Judge's ruling violated his constitutional right to freedom of religion under s 19 ( 1 ) … ( see at page 78-79 of the Appellants' ABOA )
62. Prof Dr Aziz Bari in his article entitled " Islam in the Federal Constitution : A Commentary on the decision of Meor Atiqulrahman (2000 ) 2 MLJ cxxix had this to say
" The right to freedom of religion was particularly evident when one looked at the facts in Meor Atiqulrahman namely the humiliation , embarrassment and pressure suffered by the plaintiffs at the hands of the first defendant which they were simply at her mercy.."
The learned Judge was right in stating that while putting on a turban is not incumbent on every muslim male, it was nonetheless the tradition of the Holy Prophet which meant that it was very much part and parcel of the religious teachings . To deny it tantamount to denying right to profess one's belief ." ( see at page 114 of the Appellants ABOA )
63. Based on the aforesaid submissions we humbly ask this appeal to be allowed with cost.
