Religious Dress in Schools: The Serban Controversy in Malaysia

Abstract

There has been a spate of litigation before constitutional and human rights courts challenging restrictions on wearing religious dress in state schools as an infringement of religious freedom rights.1 These cases implicate deeper constitutional issues pertaining to State-Religion relations, religious pluralism and expressions of religious identity in the public domain of multicultural societies. Within Europe, this problem relates to the issue of integrating immigrants into national society and preserving secular political orders. The European Court of Human Rights in Leyla Sahin v Turkey2 [‘Sahin’] noted that within democratic societies, opinions ‘reasonably differ widely’ on State-Religion relations, reflected in the diversity of national approaches. For example, the 2004 French law banning ostentatious religious symbols from public schools,3 embodying a strict, doctrinaire secularism, contrasts sharply with the more accommodating liberal approach where British schools pragmatically offer students alternative uniforms to satisfy religious dress codes for public modesty. The English Court of Appeal in Shabina Begum v Governors of Denbigh High School4 [‘Begum’] held, in applying the Human Rights Act,5 that the school as a state institution was obliged to consider the claimant's religious rights under Article 9(1) of the European Convention of Human Rights [ECHR], and to justify its school policy under the Article 9(2) limitation clause. The United Kingdom is ‘not a secular state’6 as statute provides for religious education and worship in schools.