Three boys who were expelled from a primary school for refusing to remove their 'serban' (male headgear) lost their appeal through their father and guardian against the Education Ministry's decision when the Federal Court today ruled that the 'serban' was not an integral part of Islam.

As such, the school's decision to suspend the three students did not contravene Article 11(1) of the Federal Constitution which guarantees freedom of religion, said the court.

In his written judgement, justice Abdul Hamid Mohamed said he disagreed with the plaintiffs' counsel that the right to wear the 'serban', even though not mandatory in Islam, was part of 'Islamic prophetic teaching'.

"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? 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," said Abdul Hamid in his judgment delivered by Federal Court deputy registrar Kamaruddin Kamsun.

He also 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)," he said.

'Dangerous trend'

Abdul Hamid also said that the school authorities should be allowed to formulate regulations that promoted national unity and allowed schoolchildren to grow up as Malaysians.

"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.

"Recently, we heard about polarisation of students at universities not only on racial and religious grounds but also among the Muslim students themselves. The polarisation was considered serious and even a dangerous trend," he said.

The three boys - Meor Atiqulrahman Ishak, and brothers Syed Abdullah Khaliq Aslamy Syed Ahmad Johari and Syed Ahmad Syakur, now aged 19, 17 and 16 respectively - were expelled from Sekolah Kebangsaan Felda Serting in Negeri Sembilan on Nov 10, 1997 for refusing to take off their 'serban' during classes.

The Education Ministry invoked Regulation (3) of the School Regulations 1997 which states that 'all pupils are prohibited from wearing the 'jubah, turban (serban), topi, ketayap' and 'purdah' during school hours. The items refer to various dressings.

Expulsion nullified

The boys' suit was filed through their guardian and father, Syed Ahmad Johari Syed Mohamed, who claimed 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.

The school's headmistress, Fatimah Sihi, the secretary-general of the Education Ministry and the government were named as respondents in the action filed at the Seremban High Court that year.

The High Court on Aug 6, 1999 then nullified the expulsion order after ruling that the headmistress did not have the authority to expel the boys.

However, the Court of Appeal overturned the High Court judgment after rejecting arguments by the students' lawyers that the wearing of the 'serban' was part of Islam and the constitution allowed freedom to practice one's religion.

The matter then went before the country's highest court after leave was obtained.