Changing with the times
Wearing a purdah has nothing to do with a Muslim's rights, declared a Malaysian court a decade ago.
Feb 26, 2002

THE judge asked: "Mr Karpal, how do you know that is your client behind the purdah? How I can be sure that the person is the plaintiff?"

Those who were present in court that day in 1991 may remember then High Court (Appellate and Special Powers) Justice Eusoff Chin asking counsel Karpal Singh that question when he heard the application by Halimatussaadiah Kamaruddin for a declaration that the government circular prohibiting her from covering her face was unconstitutional.

They may remember Karpal Singh's reply: "Well your lordship can have a look; my client is prepared to remove the purdah for you to have a look."

And so Halimatussaadiah opened her purdah a little just so Justice Eusoff (who retired as Chief Justice two years ago) could identify her.

The issue of her identity came up again during the trial when then Kuala Lumpur mufti Datuk Abdul Kadir Talib was asked to identify the plaintiff and he was unable to do so.

"He said it was impossible for him to identify the plaintiff by just looking at the eyes, and when this question was put to him, there were three persons in court wearing the purdah," Justice Eusoff noted in his judgment dated Jan 20, 1992, in which he dismissed her application.

That was a case involving the fundamental right to profess and practise one's religion in the workplace in Malaysia that also went up to the then Supreme Court. But Halimatussaadiah lost even there.

As such, while there is no precedent in the Commonwealth in relation to the use of tudung by schoolgirls, the highest court in Malaysia had allowed in 1994 the Public Services Commission (PSC) to prohibit women in the civil service from wearing the purdah.

It is a poor reflection of any democratic society if issues of race and religion can only be raised in the confines of a courtroom where court etiquette calls for decorous behaviour and each speaker/advocate is assumed to be a "learned" person.

As society evolves, questions - of whether a Muslim schoolgirl should cover her aurat while in school, a Hindu schoolboy putting the vibudhi (holy ash) on his forehead or a Sikh schoolboy wearing the turban - will keep popping up.

Public debate and the determination of how far a state should allow a citizen to exercise his or her fundamental right to practise his or her religion should not be based on how sensitive and sensible each group is but our sensitivity and sensibility.

A case in point is the current controversy in neighbouring Singapore where Muslim schoolgirls wanting to wear the tudung when in school have been suspended for refusing to comply with the state-prescribed formula of uniformed dressing for maintaining unity in a multi-racial society.

There has not been enough discourse on the real issues. Instead, while the state has imputed political motive to the father of one of the affected schoolgirls, the government has been accused of not being sensitive to Muslims and of reacting unreasonably to the attacks of Sept 11.

It's not surprising then that the fathers of two affected schoolgirls (has) announced their plans to sue the government.

Judicial pronouncements have their place, especially when they interpret fundamental liberties proscribed in the Federal Constitution. But the general public, with its short memory, rarely remembers these decisions, the grounds of the judgment or even the facts of the case.

How many Malaysians remember Justice Eusoff's judgment (1992, 1 MLJ) or that the Supreme Court (comprising then Lord President Tun Hamid Omar and Justices Edgar Joseph Jr and Mohamed Dzaiddin Abdullah) upheld his decision in 1994?

The tudung and the purdah are quite different attire but both touch on the freedom to practise one's religion.

In that case, Halimatussaadiah - a general clerk in the Perak State Legal Department - had been wearing the purdah since 1983 and the circular prohibiting women in the civil service from covering their face was issued in 1985. There is, however, no circular prohibiting a woman from wearing the tudung.

According to the judgment, the KL mufti, together with his wife, had gone to Ipoh to advise Halimatussaadiah on the "proper dress to be worn by Muslim women" but she stuck to her beliefs.

When she refused to comply with the circular, she was terminated from employment on Dec 16, 1986.

Justice Eusoff ruled that the freedom of religion guaranteed under Article 11(1) of the Constitution was not absolute as Article 11(5) did not authorise any act contrary to any general law relating to public order, public health or morality.

"If the purdah is allowed to be worn by women officers during office hours, a stranger who is not an officer at a particular government office may enter wearing a purdah and, pretending to be a woman officer working there, handle secret files which can certainly lead to dangerous and disastrous results.

"Although government employees are required to wear name tags, the tag does not reflect the true identity of a purdah wearer. The wearer could even be a man with false breasts and having a small kuali tied at his belly to represent a pregnant woman, and none in the office would be able to discover his true identity," he added.

Justice Eusoff also held the prohibition against wearing attire that covered the face did not affect the appellant's constitutional right to practise her religion, adding that the wearing of the purdah had nothing to do with the appellant's constitutional right to profess and practise her religion.

"The mufti gave evidence that purdah was a customary dress worn by Arab women even before the beginning of Islam. According to him, the Quran does not anywhere mention purdah. On the other hand, the Quran expressly prohibits a Muslim woman who performs the tawaf (ceremonial walking around the Kaabah) or while praying from covering her face," he added.

In Malaysia, the matter of exempting turbaned Sikh motorcyclists from wearing helmets and allowing Hindu boys to attend school with the vibudhi on their foreheads were resolved through discussions.

Just because something has not been done before is hardly a reason not to do it or not to challenge status quo and claim what one believes is a right guaranteed under the Constitution.

Take, for example, the practice in Brunei where even non-Muslim Malaysian girls attending government schools are required to wear baju kurung and tudung.

Those who find the tudung objectionable are free to enrol their daughters in a private school. A non-Muslim Brunei citizen may choose to challenge that practice one day.

No social formula can hold true for all time and the state cannot insist on keeping to it because it has been tested and tried the last 45 years or so and has worked fine.

There is no aspect of man that is ceterus paribus - his intellect develops (one hopes), his economic situation improves (given the opportunity), his religious beliefs take on lesser or greater fervour - as long as they do not harm society at large or any particular individual, he should be allowed to practise what he believes in.

But if the state is loath to change status quo, the courts may be the answer after all. Even then, the decision of the highest court can be overturned if the judiciary is so minded.

(This article "Social formula should change with the times" was published in The Sunday Star on Feb 24, 2002.)