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Religion & State in Malaysia Religious Composition Article 3 Art 3 (1) Islam is the religion of the Federation ; but other religions may be practised in peace and harmony in any part of the Federation.

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article 3
Article 3
  • Art 3 (1) Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.
  • Art 3(4) Nothing in this Article derogates from any other provision of this Constitution.
  • Art 4(1) (1) This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.
state support official religion islam ceremonial or beyond
State Support: official religion?Islam: ceremonial or beyond?

Art 12(2):(2) Every religious group has the right to establish and maintain institutions for the education of children in its own religion, and there shall be no discrimination on the ground only of religion in any law relating to such institutions or in the administration of any such law; but it shall be lawful for the Federation or a State to establish or maintain or assist in establishing or maintaining Islamic institutions or provide or assist in providing instruction in the religion of Islam and incur such expenditure as may be necessary for the purpose.


federation of malaya constitutional commission 1956 1957 report
Federation of Malaya Constitutional Commission, 1956-1957 Report

Para 11.

It has been recommended by the Alliance that the Constitution should contain a provision declaring Islam to be the religion of the State. It was also recommended that it should be made clear in that provision that a declaration to the above effect will not impose any disability on non-Muslim citizens in professing, propagating and practising their religions, and will not prevent the State from being a secular State.

piecemeal reference to discrete secular values
Piecemeal reference to discrete secular values

Hungary Constitution art 60(3)

(3) In the Republic of Hungary the Church functions in separation from the State.

2. East Timor Constitution

Section 45(1) Every person is guaranteed the freedom of conscience, religion and worship and the religious denominations are separated from the State

3. Singapore Constitution: arts 15, 12, 16, 150

“democratic secular state” – para 38, Wee Commission


historical origins europe
Historical Origins: Europe


Religious Loyalties = politically significant; religious wars (Protestant Reformation vs Holy Roman Empire)

Cuius regio eius religion (whose district it is, his religion it is)

1648 Treaty of Westphalia: limited protection for religious minorities in ceded lands

historical origins beyond europe
Historical origins: Beyond Europe

Ottoman Empire – Theocracy – Sultan wields absolute divine power

Religious-based classifications: Ummah (Muslims) and dhimmis (non-Muslims): unequal citizens

Millet system – confessional autonomy and peaceful co-existence (pre-modern religious pluralism)


state religion
State & Religion

1. State Ambivalence owing to competing loyalty

  • Transnational Faith Community e.g. ummah
  • Ultimate values and transcendent reason to question state power e.g. JWs and military service
  • Religious revivalism and fundamentalisms
state ambivalence towards religion
State ambivalence towards Religion

State attempt to domesticate religion e.g. “Patriotic Religion” – 1992 Vietnam Constitution

Preamble: In the light of Marxism-Leninism and Ho Chi Minh's thought, implementing the Political Program for National Construction during the transitional period to socialism, the Vietnamese people pledge to bring into full play their traditional patriotism, unite as one, uphold the spirit of self-resilience in building the country, pursue a foreign policy of independence, sovereignty, peace, friendship and co-operation with all countries in the world, scrupulously abide by the Constitution, and forge ahead in the cause of reform and renewal, and of building and safeguarding their homeland.

Article 70 No one can violate freedom of belief and of religion; nor can anyone misuse beliefs and religions to contravene the law and State policies


constitutions and religion
Constitutions and Religion

Degree of Identification

Theocracy Complete Identification


Endorsement “Public” / “Private”

Co-operationist contested categories


Separationist Non Identification


separationist regimes non identification with religion
Separationist Regimes: Non Identification with Religion

Communist: church, press, universities serve the state

Hostile / Militant Secularism:

Demands Religion’s retreat from any area of state activity

No (indirect) subsidies to religion

No religiously-based exemptions from general laws

3. French Secularism (Laïcité);

(legal schizophrenia)


cooperationist regimes
Cooperationist Regimes

No official religion

Significant state funding?

Luxembourg Constitution

Article 106 [Salaries of Priests]The salaries and pensions of ministers of religion shall be borne by the State and regulated by the law.

“recognised religious groups”



Identification of Religion / State

No ‘sacred’ / ‘secular’ divide

Role of divine law & revelation in public life

Example: Art 1 (Saudi Arabia)

The Kingdom of Saudi Arabia is a sovereign Arab Islamic state with Islam as its religion; God's Book and the Sunnah of His Prophet, God's prayers and peace be upon him, are its constitution, Arabic is its language and Riyadh is its capital.


establishment endorsement

To ‘establish’ is to lend state support, financial or non-pecuniary e.g. Church of England; Monarch as Fidei Defensor

Endorse /Confessional Constitution, Privileged Treatment for Official Religion

ART 9, SRI LANKA CONSTITUTION: The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e).


confessional malaysia
Confessional: Malaysia

Art 3(1) Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.

Art 3(2) – State Rulers are Head of the Religion of Islam


honour without support
Honour without support?


Irish Constitution: Art 44(1): “The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.”

Fiji Constitution Section 5 State and religion: “Although religion and the State are separate, the people of the Fiji Islands acknowledge that worship and reverence of God are the source of good government and leadership.”

non establishment two jurisdictions
Non-Establishment (‘Two Jurisdictions’)
  • ‘Two Jurisdictions’ Idea: ‘Render Unto Caesar / God’
  • Separation of Religion & State = limited government: resistance: Roman Empire
  • Saeculum (root word of ‘secular’)
    • Jurisdictional idea: parts of civil order not governed by religious bodies

e.g. Imperial Cult and Julius Caesar (Deo Invicta) as “civic religion”

secularism basic idea a principle of limited government
Secularism: Basic Idea – a principle of limited government
  • Separate sphere of ‘religion’ and ‘government’
  • State cannot assume ultimate significance
  • Dissent from state absolutism
us non establishment experiment two jurisdictions
US Non-Establishment Experiment(‘Two Jurisdictions’)

US Religious Liberty Experiment –

  • No National Church (religious refugees)
  • US First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
  • Freedom “of” and not freedom “from” religion
secularism in context
Secularism in Context
  • France: anti-clericalism: State vs Catholic Church
  • US: many religious groups
  • India: Secularism as saviour? (genocide)
  • Malaysia: secularism as bane? – resentment towards secular law as colonial imposition
secularism as saviour india
Secularism as Saviour? India

Secular state not a godless, irreligious or anti-religious state (HV Kamath, Congressman)

General Law but Muslim resistance to Uniform Civil Code


historical origins what s in a word
Historical Origins: what’s in a word?
  • In Freedom of Religion in Malaysia by Lee Choon Min, the writer is of the opinion that Malaysia is not purely a secular state like India or Singapore but is a hybrid between the secular state and the theocratic state. The constitution of this hybrid model accord official or preferential status to Islam but does not create a theocratic state like Saudi Arabia or Iran.

Lina Joy v Majlis Agama Islam Wilayah & Anor [2004] 2 MLJ 119 para 18 (High Court, Malaysia)

what does constitutional secularism entail
What does constitutional secularism entail?
  • Source of Power – LEGITIMACY
  • Preferential Treatment of one religion /ideology? – cf: STATE ATTITUDE: malevolent to benevolent to champion?
  • Religion in Public Culture and Debate –cf: Religion & Politics –– DEMOCRACY
  • Religious Symbols in public (ceremonial vs. public law) – SACRED TO NAKED PUBLIC SQUARE
  • Religious law in civil courts? JURISDICTIONAL CONFLICTS no Strict Separationism
proposed official religion clause
Proposed Official Religion 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, practise and propagate that religion, nor shall any citizen be under any disability by reason of his being not a Muslim. (1956-1957 Report)

12. A provision like one suggested above is innocuous. Not less than fifteen countries of the world have a provision of this type entrenched in their Constitutions

art 11
Art 11
  • (1)Every person has the right to professand practice his religion and, subject to Clause (4), to propagate it.
  • (4) State law and in respect of the Federal Territories of Kuala Lumpur and Lubuan, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.
  • (5) This Article does not authorize any act contrary to any general law relating to public order, public health or morality.
federal state powers art 74
Federal-State Powers: Art 74
  • (1) Without prejudice to any power to make laws conferred on it by any other Article, Parliament may make laws with respect to any of the matters enumerated in the Federal List of the Concurrent List (that is to say, the First or Third List set out in the Ninth Schedule).
list ii state powers
List II, State Powers

Except with respect to the Federal Territories of Kuala Lumpur and Labuan, Islamic law and personal and family law of persons professing the religion of Islam, including

  • Islamic law relating to succession, marriage, adoption, divorce etc…
  • organisation and procedure of Syariah courts, which shall have jurisdiction only over person professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law*,
  • control of propagating doctrines and beliefs among Muslims;
art 121 1a
Art 121(1A)
  • Article 121(1A) provides that the High Courts 'shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts.’
art 160
Art 160
  • "Malay" means a person who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom and -
che omar v pp 1988 2 mlj 55
Che Omar v PP[1988] 2 MLJ 55
  • Meaning of “Islam”

a. Art 3, Federal Constitution (rituals and ceremonies)

b. Islam free standing: (a comprehensive way of life, jurisprudence and moral standards)

islam lord president tun salleh abas
“Islam”:Lord President Tun Salleh Abas

There can be no doubt that Islam is not just a mere collection of dogmas and rituals but it is a complete way of life covering all fields of human activities, may they be private or public, legal, political, economic, social, cultural, moral or judicial. This way of ordering the life with all the precepts and moral standards is based on divine guidance through his prophets and the last of such guidance is the Quran and the last messenger is Mohammad SAW whose conduct and utterances are revered.

original intent
Original Intent
  • Was this the meaning intended by the framers of the Constitution? For this purpose, it is necessary to trace the history of Islam in this country after the British intervention in the affairs of the Malay States at the close of the last century.

Lord President Tun Salleh Abas

pre colonial malaya tanah melayu
Pre Colonial Malaya (Tanah Melayu)
  • the sultans in each of their respective states were the heads not only of the religion of Islam but also as the political leaders in their states, which were Islamic in the true sense of the word, because, not only were they themselves Muslims, their subjects were also Muslims and the law applicable in the states was Muslim law
  • Under such law, the sultan was regarded as God`s vicegerent (representative) on earth. He was entrusted with the power to run the country in accordance with the law ordained by Islam, i.e. Islamic law and to see that law was enforced
advent of british colonialism
Advent of British Colonialism
  • Treaties with Malay Sultans (Treaty of Pangkor) – progressive diminution of sultan’s authority by British Advisers
  • Introduction of secular law and cabining of Islamic Law: “the religion of Islam became separated into two separate aspects, viz the public aspect and the private aspect.”
advent of british colonialism37
Advent of British Colonialism

3. From God’s Vice-regent to (human) Sovereign within territory The development of the public aspect of Islam had left the religion as a mere adjunct to the ruler`s power and sovereignty. The ruler ceased to be regarded as God`s vicegerent on earth but regarded as a sovereign within his territory

sovereignty as alien concept
Sovereignty as alien concept

4. The concept of sovereignty ascribed to humans is alien to Islamic religion because in Islam, sovereignty belongs to God alone. By ascribing sovereignty to the ruler, i.e. to a human, the divine source of legal validity is severed and thus the British turned the system into a secular institution. Thus all laws including administration of Islamic laws had to receive this validity through a secular fiat

retreat of islamic law from general to particular law
Retreat of Islamic Law from General to Particular Law
  • The law was only applicable to Muslims as their personal law. Thus, it can be seen that during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce, and inheritance only
setting aside personal feelings
Setting aside personal feelings
  • However, we have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of law. Perhaps that argument should be addressed at other forums or at seminars and, perhaps, to politicians and Parliament. Until the law and the system is changed, we have no choice but to proceed as we are doing today.
the return of personal feelings high court meor atiqulrahman
The Return of Personal FeelingsHigh Court: Meor Atiqulrahman
  • In my opinion, Article 3 of the Federal Constitution means that Islam is the dominant religion amidst other religions which are practised in the country like Christianity, Buddhism, Hindu and others. Islam is not of the same status as the other religions; it does not sit side by side nor stand side by side. Rather, Islam sits at the top, it walks first, and is placed on a mantle with its voice loud and clear. Islam is like a ‘jati’ tree – tall, firm and able. Otherwise, Islam will not be the religion of the Federation but just another of the many religions embraced in the country and everybody would be equally free to embrace religions, with none better or more than any other.
judicial revisionism of an innocuous clause high court meor atiqulrahman
Judicial Revisionism of an Innocuous Clause? High Court: Meor Atiqulrahman
  • The designation of Islam as the religion of the Federation must be given the right interpretation. It means that the government is responsible for…spreading Islam as is done by the current government, for example building mosques and religious centres, sponsoring musabaqah al-Quran, reciting the al-Quran, restricting acts forbidden by Islam like banning alcohol, gambling, prostitution and undesirable cultures, and by right should include making laws to ensure that religious places of other religions do not exceed or compete with National / State Mosques in terms of location and prominence, size and overly-majestic architecture…
  • Other religions must be arranged and directed to ensure that they are practiced peacefully and do not threaten the dominant position of Islam, not just at the present but more importantly in the future and beyond.
law politics religion malaysia not secular state says najib july 17 2007 bernama com
Law, Politics, ReligionMalaysia Not Secular State, Says NajibJuly 17,
  • "Islam is the official religion and we are an Islamic state. But as an Islamic state, it does not mean that we don't respect the non-Muslims. The Muslims and the non-Muslims have their own rights (in this country),"

We have never been secular because being secular by Western definition means separation of the Islamic principles in the way we govern a country. We have never been affiliated to that position. We have always been driven by our adherence to the fundamentals of Islam. So, your premise is wrong," he said.

  • Najib said Malaysia does not want to be stereotyped with the Western definitions of a secular and a non-secular state.
religion malaysia rediscovering secularism by baradam kuppusamy ips news 14 march 2006
RELIGION-MALAYSIA: Rediscovering SecularismBy Baradam Kuppusamy IPS News, 14 March 2006

Article 11 Coalition: fear creeping Islamic theocracy as government officials (65% Muslim) abdicating duty to defend secular constitution.

  • ''They took an oath to defend the constitution but they are not doing it... 'We want to reaffirm the supremacy of the secular constitution because there is a danger Malaysia is being turned into an Islamic state in a silent and insidious manner.''
  • The minds of politicians, judges and civil servants have become clouded às they see themselves as Muslims first and citizens second,''
  • ''Malaysia is not an Islamic state, Malaysia is a secular state and the constitution is the supreme law of the land,''
art 1145
Art 11

(1)Every person has the right to professand practice his religion and, subject to Clause (4), to propagate it.

(4) State law and in respect of the Federal Territories of Kuala Lumpur and Lubuan, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.

(5) This Article does not authorize any act contrary to any general law relating to public order, public health or morality.

religious freedom issues
Religious Freedom Issues
  • Jurisdictional issues: which court?
  • Scope of Religious Freedom in Malaysia
    • Content: free conscience?
    • Liberty vs. Public Order
    • Individual vs. Group Rights
    • Equality: differentiated regimes for believers?

3. Interpretive Method

    • Common Law Legal Transplant
    • Article 3 – status and effect?
dual court structure
Dual Court Structure
  • Status of Civil & Syariah Courts (hierarchy?)
    • Court of Judicature Act (1964): no case transfers from syariah court to High Court
jurisdictional conflicts civil religious courts
Jurisdictional Conflicts: Civil & Religious Courts

Dual Court Structure: Which court has jurisdiction over personal status of a Muslim?

Art 121(1A): "The [High Court] shall have no jurisdiction in respect of any matter within the jurisdiction of the syariah courts."

Parliamentary debates: prevent High Court from exercising judicial review over Syariah Court decisions (overlapping jurisdiction)

Rationale: Prevent someone adjudicating a dispute before a religious court from switching to civil court to get fresh hearing

jurisdictional conflicts civil religious courts49
Jurisdictional Conflicts: Civil & Religious Courts
  • Significance of Art 121(1A): enhanced status of syariah courts
      • Subordinate
      • Co-ordinate
      • Superior?
  • Political Context: Malay ethno-nationalism and Islamic supremacy
interpreting art 121 1a
Interpreting Art 121(1A)
  • Which matters fall within syariah court jurisdiction?
  • Who decides this question?
art 121 1a51
Art 121(1A)
  • Exclusive jurisdiction to syariah courts
  • Concurrent jurisdiction – civil and syariah courts
    • Civil Courts: hear cases between Muslims & non-Muslims: family law disputes, custody, kidnapping – mixed questions of syariah and criminal law means no ‘exclusive jurisdiction’
    • Shift: Shamala (2004): High Court refused jurisdiction: legitimacy of unilateral conversion of infants to Islam by husband (Muslim convert)
    • Faisa J: only syariah courts had expertise to determine religious status of infants
    • Only remedy for widow: seek help of religious body
critique of expansive reading of wider jurisdiction of syariah courts
Critique of expansive reading of ‘wider jurisdiction’ of syariah courts
  • Presumes art 121(1A) removes High Court jurisdiction over apostasy when law is silent cf: premise that civil court has general jurisdiction unless otherwise provided e.g. fundamental liberties cases
  • Conflates legislative power with legislation: State List as ‘self-executing’ in delineating extent of judicial jurisdiction
  • Confused reference to “inherent” jurisdiction to syariah court (e.g. no power to issue declaration of apostasy)
jurisdictional conflict procedural bar to substantive question
Jurisdictional Conflict: procedural bar to substantive question?
  • Does art 121(1A) oust High Court jurisdiction over Part II fundamental liberties cases?
  • Declining jurisdiction (a) want of jurisdiction and (b) want of syariah law expertise ( but not general Islamic law but fiqh (legislation – positive law)
  • Apostasy: a question of fact or a question of Islamic law
  • Lina Joy, Federal Court: Civil courts have no jurisdiction
    • Note: Islamic laws are State (not Federal) law
    • Affirmed Soon Singh
    • Need syariah court declaration: de-constitutionalising the case
    • Exhaustion of remedies and illusory rights?
problems non islamic litigants and non islamic issues
Problems: non-Islamic litigants and non-Islamic issues
  • Res Personae: Not all parties are Muslim
    • Moorthy Case: Hindu vs Muslim burial rights (widow no standing before syariah court which had issued ruling deceased was Muslim) – procedural bar
    • Discrimination: religious minorities – deprived access to civil justice

8 May 2008

  • The Shariah court in Penang, however, granted Siti Fatimah Tan Abdullah's request to be declared a non-Muslim. She embraced Islam in 1998 because she wanted to marry an Iranian, but claimed she never truly practiced the religion
  • The Shariah court, which governs Muslims' personal conduct and religious lives, ruled that Siti's husband and Islamic authorities failed to give her proper religious advice.
  • "So you can't blame her for her ignorance of the teachings and wanting to convert out," said Ahmad Munawir Abdul Aziz, a lawyer for the Islamic Affairs Council in Penang.
  • Still needs to ask the government registration department to have her name and religion changed back on her identification papers.

2. Res Materiae: The issue might implicate both Islamic and general law e.g. trust land

  • The Reach and Limits of Judicial Review: Abdication of Judicial Responsibility to uphold Constitutional Supremacy
    • Restrictive construction of fundamental liberties cf: generously
religious freedom free conscience
Religious Freedom & Free Conscience
  • Art 18 UDHR : Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
  • LIMITATION:Art 29(2) UDHR In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
freedom of conscience
Freedom of Conscience?

Daud bin Mamat:“the act of exiting from a religion is not a religion” as to read otherwise would “stretch the scope of article 11(1) to ridiculous heights.”

Need for “additional hypothetical ingredient” of the term “renounce” in art 11 to invoke it

Right to ‘profess’ does not include the right to choose one’s religion. (Lina Joy, High Court)

religion and conscience
Religion and Conscience
  • Faiza J in Lina Joy distinguished freedom of religion from freedom of conscience
  • Plaintiff had made “another fundamental error” in asserting article 11(1) housed the principle of conscience, in effect equating article 11(1) with article 25 of the Indian Constitution which expressly guarantees “Freedom of conscience and free profession…”
religion and conscience62
Religion and Conscience
  • Personal or Third Party Choice (Right vs Privilege)
    • Converting out is not a personal matter: Lina Joy HC
    • Art 11(3)(a): religious affairs
  • Public Order Considerations
    • Art 11(4): ‘chaos and confusion’ – harmony of Muslim and non-Muslim communities
individual liberty vs group integrity
Individual Liberty vs. Group Integrity

Lina Joy (2005), Court of Appeal:

“Renunciation of Islam is generally regarded by the Muslim community as a very grave matter. … The Muslim community regards it as a grave matter not only for the person concerned, in terms of afterlife, but also for Muslims generally, as they regard it to be their responsibility to save another Muslim from the damnation of apostasy.”

conflating race and religion precluding exit
Conflating race and religion: precluding exit
  • Lina Joy (2004): High Court ruled that by virtue of article 160(2), Lina Joy “is a Malay and therefore as long as she is a Malay by that definition she cannot renounce her Islamic religion at all. As a Malay, the plaintiff remains in the Islamic faith until her dying days.”
art 11 read subject to art 3
Art 11 read subject to art 3

Religious Authority Counsel, Lina Joy FC

  • ‘Do we still continue to see through common law eyes and outmoded British interpretation, or do we give reality to the historical process that is, Islam law and adat (customs) applied to our law?
  • Cyrus Das: ‘‘a kind of revisionism and re-writing of the Federal Constitution’
  • Art 3(4): secular nature of Federation
  • Manifests desire: return to pre-colonial era where Islam was purportedly law of the land – over-simplification: complex interplay of Hindu, Muslim and Malay indigenous traditions in the Malaysian legal system
secular v sacred
Secular v Sacred
  • Lina Joy case characterised as one where “Islam prevails over the right to religious freedom” reflecting Malaysia’s “unique” model of religious liberty shaped by Islamic tenets

Abdul Aziz Bari, (2004) IIUMLJ 145 at 146

basic law of malaysia
Basic Law of Malaysia?
  • English Common Law?
  • Islamic law?
  • Malay Custom?
  • Multi-ethnic, multi-religious country
    • Malay and natives: 65.1%
    • Chinese 26.0%
    • Indians 7.7%
legal transplants
Legal Transplants
  • ‘Voluntary’ transplant of the common law
  • What is the common law?
    • Collection of cases?
    • Set of unwritten laws and principles of fairness?
    • Lord Diplock “Distinctive mode of legal reasoning”?
  • What does it mean to “Malaysianise” the common law?
article 3 interpretive method
Article 3 – Interpretive Method

Original Intent

Rituals and ceremonies (Che Omar)



Islam as ad-deen (Meor Atiqulrahman)

serban case
Serban Case

Art 11 & religious practice

Custom or Religion? Halimatussadiahcase

Mandatory or Optional?

serban case71
Serban Case
  • Art 3 and Art 11 – High Court
    • Judicial Revisionism
    • Obiter discussion of tudung and length of male school uniforms and importance of “aurat”
  • Test of essentiality / integral part of religion– Court of Appeal
  • Proportionality Test – Federal Court
serban case 3 issues
Serban Case: 3 issues

Abdul Hamid Mohamad FCJ

A. Evaluating the nature of the practice


Religious practice

Importance of practice to religion - if integral, give more weight to it; if not importance, less weight

reference to islamic law
Reference to Islamic Law


In the Islamic context, the classification made by jurists on the “hukum” regarding a particular practice will be of assistance. Prohibition of a practice which is “wajib” (mandatory) should definitely be viewed more seriously than the prohibition of what is “sunat” (commendable).

serban case74
Serban Case

whether the wearing of turban by boys of the age of the Appellants is a practice of the religion of Islam.

Islam is not about turban and beard. The pagan Arabs, including Abu Jahl, wore turbans and kept beards. It was quite natural for the Prophet (P.B.U.H.), born into the community and grew up in it, to do the same. As it was not repugnant to the teaching of Islam, he continued to do so.

Rejected argument seeking to equate wearing turban with Hajj (pre Islamic practice) - Islamic Hajj different from pagan Arab Hajj and Quran verses identify hajj as mandatory

the origins of the turban
The Origins of the Turban

Turbans were (and are) not only worn by Arabs. Other peoples, living in the desert or semi-desert areas, e.g. the Afghans and Persians wore/wear them too. Indeed, anybody who goes to Mecca will immediately realize that a piece of cloth, by whatever name it is called, to cover his head and face from the heat, the dryness and the dust, is most useful. Nowadays, the turbans… symbolize the nationality of the persons wearing them e.g. whether they are Saudis, Sudanese, Afghans, Omanis, etc. The turban has become part of the national dress of those countries.

turban not indigenous to malaysia
Turban not indigenous to Malaysia

1960s: only Hajis wore turbans i.e. went on Haj (pilgrimage) and worn as sign of “alim” (knowledgeable in matters of Islamic religion) and “warak” (piety). Non-Hajis would not wear them. They would be ashamed to do so.

1970s: influence of “dakwah” (missionary) groups. They distinguished themselves by their dress, the men and their male children wore “jubah” and “serban”.

Today: “very few of our Muftis and hardly any Shari’ah Court Judge wears turban.”


“As far as I can ascertain, the Al-Quran makes no mention about the wearing of turban..”

no “fatwa” in this country on the wearing of turban.

Prophet wore turban but “he also rode a camel, built his house and mosque with clay walls and roof of leaves of date palms 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 more Islamic to brush one’s teeth with a twig than using a modern tooth brush with tooth paste and water to wash in the privacy of one’s bathroom?”


It is not everything that the Prophet (P.B.U.H.) did or the way he did it that is legally (according to Shariah) or religiously binding on Muslims or even preferable and should be followed.

Is a practice (a) Mandatory (b) commendable (c) permissible?

Non Legal and Legal Sunnah: Principles of Islamic Jurisprudence” by Mohammad Hashim Kamali (1991)

common observance expert evidence
Common Observance / Expert Evidence

The best place to see whether it is the practice of boys (Arab not Malay boys) of the age of the Appellants to wear turban or not, is to go to Masjid Al-Haram, the birthplace of the Prophet (P.B.U.H.), where the “House of Allah” (“Baitullah” or the “Kaabah”) stands. Go there after the “Asar” prayer. One can see scores of boys of the age of the Appellants sitting cross-legged learning to read and reciting the Al-Quran. None of them wears turban, whether tied the way the Appellants do or otherwise.

Concludes: the “practice” is of little significance from the point of view of the religion of Islam

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Serban Case: 3 issues

B. Evaluating the Restriction

The next step is to look at the extent or seriousness of the prohibition. A total prohibition certainly should be viewed more seriously than a partial or temporary prohibition. For example, a regulation that prohibits an adult Muslim male from leaving his job to perform the Friday prayer is more serious than a regulation that requires adult male Muslims employees to take turn to perform their “Asar” prayer, all within the “Asar” period.


We are not dealing with a total prohibition of wearing of the turban: cannot wear during school hours only. ..

In- School Exception: Even in school, certainly, they would not be prevented from wearing the turban when they perform, say, their “Zohor” prayer in the school “surau” (prayer room). But, if they join the “Boy Scout”, it is only natural if they are required to wear the Scouts uniform during its activities. .. Certainly, there is a place for everything.

Available Alternative: Furthermore, there is nothing to prevent them from changing school, e.g. to a “pondok” school that would allow them to wear the turban.

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Serban Case: 3 issues

B. Evaluating the Extent of the Restriction to evaluate constitutionality

Then, we will have to look at the circumstances under which the prohibition is made. An air traffic controller will have to be at his post even during Friday prayers, where replacement by a non-Muslim or a female employee is not possible. A surgeon who starts an emergency operation just before the “Maghrib” prayer may have to miss his prayer. (Even the Shariah provides exceptions and relaxation of its application under certain circumstances).

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Serban Case

Whether we like it or not, we have to accept that Malaysia is not the same as a Malay Stateprior to the coming of the British. She is multi-racial, multi-cultural, multi-lingual and multi-religious. It is difficult enough to keep the 14 States together.

Tensions between races and amongst Muslims noted: need for inter-mixing in national schools – “polarisation” as dangerous trend

Deference to expertise of educators: “when they formulate some regulations applicable in their schools for the general good of all the students, the society and later the nation.”