WEARING TUDUNG IS GUARANTEED BY CONSTITUTION
By : MOHAMED HANIPA BIN MAIDIN
Utusan Malaysia today reports that “ Seorang pengarah akaun sebuah hotel bertaraf lima bintang di ibu negara kecewa apabila terpaksa melepaskan jawatan yang dipegangnya sejak lebih 10 tahun lalu semata-mata kerana memakai tudung. Habsah Jaafar, 46, mendakwa beliau terpaksa berbuat demikian setelah diberi kata dua oleh pengurusan hotel terbabit sama ada mematuhi peraturan yang melarang pemakaian tudung ketika bekerja atau melepaskan jawatannya”.
Puan Habsah further said in her press statement that :-
``Mereka (pengurusan hotel) bimbang jika saya datang kerja dengan bertudung, ia akan mempengaruhi pekerja-pekerja lain untuk berbuat demikian,'' katanya pada sidang akhbar di Ibu pejabat Pergerakan Pemuda UMNO di sini, hari ini.
According to her the issue emerged for the first time when she had asked for a leave to go for a hajj on last December. As a result of that decision she was then called by her employer and given an ultimatum either to uncover her aurat or leave her job for good.
This is what she said as quoted by Utusan :-
“ Sebagai orang Islam, bila mereka suruh saya buka tudung, saya rasa seolah-olah mereka suruh saya berbogel,'' katanya yang sudah lebih 20 tahun berkecimpung dalam bidang perhotelan.”
Presumably the actual facts are as stated in the said report this is my legal advice to her and anyone facing such predicament.
What had been done to this lady was against Article 11 ( 1 ) of the Federal Constitution ( FC ) which provides a person a right to profess and practice his/her religion. In her case her religion is definitely Islam. Wearing tudung ( part of covering "aurat ) is part and parcel of professing and practising her religion and in Islam observing such aurat is mandatory. Be that as it may such fundamental right cannot be restricted let alone denied even during an emergency [ see the case of Jamaluddin bin Othman v Menteri Dalam Negeri ] .
What her employer did to this pity yet bravest woman was unconstitutional as it had made her fundamental rights of practising her religion enshrined under Article 11 ( 1 ) ineffective and illusory. If she has the right to practice her religion the employer on the other hand owes her a duty to honour and observe such right and the latter by refusing to honour such right had clearly breached that sacred duty . The employer is therefore liable in tort.
The court of appeal in the case of Fatimah Sihi & 2 Ors v Meor Atiqulrahman ( the case is now pending in Federal court ) held that practising one's religion means practising an integral or essential part of such religion. As wearing tudung is mandatory and becomes an integral or essential part of her religion she could not be given an ultimatum by her arrogant employer i.e either wearing tudung or leaving the job. Consequently her dismissal was invalid and unconstitutional. She is therefore entitled to be reinstated to her job and in turn be compensated with damages vis-a vis her right of wearing tudung remains intact.
Apart from Article 11 ( 1 ) of the FC , her employer’s conduct also attracts Article 5 ( 1 ) of the FC which provides that “ no one shall be deprived his/her life and liberty save in accordace with law”. By asking her to leave her employment the employer in actual fact had deprived her liberty and life not in accordance with law. It is interesting to note the court in one case decided that the word “life” in Article 5 ( 1 ) includes one’s right of employment. Clearly her right to life was deprived not in accordance with law and the law in this case refers to Art 11 ( 1 ) of the FC.
Alas, in my view, she needs a lawyer rather than UMNO ! Doesn't she ?