Document 160533

# The Author 2007. Published by Oxford University Press. All rights reserved.
Advance Access publication 27 August 2007
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The Islamic Veil and
Freedom of Religion, the
Rights to Education and
Work: a Survey of Recent
International and National
Cases
Manisuli Ssenyonjo
Abstract
The wearing of the female Islamic dress (generally referred to as the hijab ), or any
feature of this dress such as the headscarf (khimar), face veil (niqab ) and the headto-toe all enveloping garment ( jilbab ) is a complex and multi-faceted issue that is
often raised in public debate in most European States in recent years particularly
in the education and employment areas. This article analyses the selected State practice and judicial decisions on the banning and similar restrictions to the wearing of
the Islamic dress in State schools. Two issues are analysed: (i) whether the prohibition
of female Muslim pupils or students from wearing the Islamic dress, or any feature of
the Islamic dress, while at State schools amounts to an unjustifiable violation of the
right to education and/or an unjustifiable violation of freedom to manifest one’s religion or beliefs and (ii) if a State (or a non-State actor) prohibits a female Muslim
teacher from wearing the Islamic dress while at a State school, does this amount to
a violation of the teacher’s right to work and/or the teacher’s right to manifest
freedom of religion or belief?
I. Introduction
1. An issue that has become increasingly prominent in the beginning of the twenty-first
century is the question whether pupils/students attending State schools, and teachers
Senior Lecturer, Brunel Law School, Brunel University, West London, UK (email: [email protected]
ac.uk). All internet sources cited in this article were last visited on 30 June 2007, unless stated otherwise. The
author would like to thank Professor Mashood Baderin of the School of Oriental and African Studies, University
of London, for the discussions held with the author regarding the subject matter of this article. Any errors are the
author’s alone.
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Chinese Journal of International Law (2007), Vol. 6, No. 3, 653 –710
doi:10.1093/chinesejil/jmm029
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Chinese JIL (2007)
teaching in State schools, have the right to wear religious clothing and religious symbols
in State schools.1 This issue is part of a much broader set of questions regarding either the
right to ‘‘manifest’’ freedom of thought, conscience and religion in observance or practice,
and/or the right to freedom of expression.2 Although the issue pertains to a variety of
religious clothing and symbols, including the Sikh kirpan and turban, the Jewish
yarmulke (cloth skull cap), and the Christian cross, the most salient issue has become the
Islamic dress for women, which is generally referred to as hijab (translated by some as
the headscarf ).3 For more than 20 years, the place of the Islamic dress (especially the
Islamic headscarf ) in State education has been the subject of debate across Europe.4
A December 2006 Report of European Monitoring Centre on Racism and Xenophobia
(EUMC) stated:
The wearing of the headscarf is a complex and multi-faceted issue that is often raised
in public debate in most European countries during recent years particularly in the
areas of education and employment. It is in these areas that the issue of the headscarf
has become controversial, as it is seen as a symbol of female oppression and gender
inequality.5
2. Some States have undertaken measures to ban the wearing of religious clothing (or
symbols) generally in State primary and secondary schools,6 as well as in the universities.7
Although the relevant legislation in some States (such as in France and Turkey) applies to
both sexes, male and female, it disproportionately affects Muslim women who observe the
wearing of the veil as a religious obligation. While Islam has no fixed standard as to the
style of dress or type of clothing that Muslims must wear, it is widely believed by
1 See Board of Experts of the International Religious Liberty Association (IRLA), Guiding Principles Regarding
Student Rights to Wear or Display Religious Symbols (Sigu¨enza, 15 November 2005), Background, para. 1
(www.irla.org/documents/reports/symbols.html).
2 See, e.g. Universal Declaration of Human Rights (UDHR), GA Res 217A(III), 10.12.1948, U.N. Doc A/810 at
71 Articles 18 –19; International Covenant on Civil and Political Rights (ICCPR), 999 UNTS 171, Articles 18 –
19; Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), ETS No.: 005,
Articles 9–10.
3 The term ‘‘hijab’’ in Arabic means ‘‘barrier’’ or ‘‘screen’’. It comes from the Arabic word ‘‘hajaba’’ meaning to
hide from view or conceal. In Islamic scholarship, hijab is usually taken to mean ‘‘modest dress’’ and demeanour,
in general. See Islam on line, Hijab: A Must, Not a Choice, 29 February 2004, (www.islamonline.net/servlet/
Satellite?cid¼1123996016350&pagename¼IslamOnline-English-AAbout_Islam/AskAboutIslamE/
AskAboutIslamE).
4 Pew Global Attitudes Project, Islamic Extremism – Common Concern for Muslim and Western Publics,
(www.pewglobal.org/reports/display.php?PageID¼809); Leyla S¸ahin v. Turkey, Application no. 44774/98,
below n. 15, para. 55 –64.
5 EUMC, Muslims in the European Union: Discrimination and Islamophobia, EUMC, (2006), 40 (www.eumc.
europa.eu/eumc/material/pub/muslim/Manifestations_EN.pdf ).
6 For example, in France, legislation was passed on 15 March 2004 which inserted a new Article L. 141-5-1 in the
Education Code, which provides: ‘‘In State primary and secondary schools, the wearing of signs or dress by which
pupils overtly manifest a religious affiliation is prohibited. The school rules shall state that the institution of disciplinary proceedings shall be preceded by dialogue with the pupil’’.
7 Azerbaijan, Albania, Turkey and Uzbekistan regulate the wearing of the Islamic dress at the university level.
Ssenyonjo, The Islamic Veil 655
Muslims that the Islamic religion obliges women ( from the age of puberty) to veil when
in the presence of men they are not related or married to.8
3. Despite some differences in opinion, the vast majority of Muslim scholars and jurists,
past and present, have determined the minimum requirements for Muslim women’s
dress, one of which is that Muslim women’s ‘‘clothing must cover the entire body, with
the exception of the face and the hands’’.9 It is asserted, therefore, that the ‘‘hijab is not
a (religious) symbol but rather it is a religious obligation for Muslim women (who attained
` ah, Mufti of
the age prescribed)’’.10 In this respect, the eminent Islamic scholar, Dr Ali Jum
Egypt, stated in 2004:
A Muslim woman is obliged to wear hijab as soon as she reaches puberty, . . . Hijab is
known to be essential and necessary in religion; it is not merely a symbol that distinguishes Muslims from non-Muslims. It is an obligation that forms part and
parcel of the Islamic religion.11
4. It has been argued by some feminist scholars that wearing the veil is ‘‘a sign of male domination over women’s bodies and lives’’ as well as ‘‘a tool of oppression, alienation, [and] discrimination. . . It is not an accident that men do not wear the veil’’.12 However, the views of
the purported victims do not entirely support this view. For example, some Muslim women
in the UK asserted in May 2006 that although the media ‘‘dehumanises Muslim women who
wear hijab or headscarves’’, the reality is that ‘‘Muslim women are not oppressed. . . But
wearing hijab is part of the identity of some Muslim women. It is spiritual or personal
choice’’.13 Although Muslim men are also required to be ‘‘modest in dress’’, Islamic religion
8 See, e.g. Translation by Abdullah Yusuf Ali, The Holy Quran (Amana Corp., 1989), 24:30 –31, ‘‘. . .And say to
the believing women that they should lower their gaze and guard their modesty; that they should not display their
beauty and ornaments except what (must ordinarily) appear thereof; that they should draw their veils [khumu¯r ]
over their bosoms and not display their beauty except to their husbands, their fathers,. . .’’. See also Quran 33:59
‘‘O Prophet! Tell thy wives and daughters, and the believing women, that they should cast their outer garments
over their persons (when abroad): that is most convenient, that they should be known (as such) and not molested. . .’’. For a discussion, see Emi Goto, Qur’an and the Veil: Contexts and Interpretations of the Revelation, 1(2)
IJ Asian Studies (2004), 277 –295.
9 See generally Jamal A. Badawi, The Muslim Woman’s Dress According to the Qur’an and Sunnah (Islamic
Propagation Centre International, 1998); S. Mutawalli ad-Darsh, Hijab or Niqab: Muslim Women’s Dress
(Islamic Book Trust, 1997); Islam 101, Hijab in the Work Place (www.islam101.com/women/hijabfaq.html).
Other requirements of the hijab in Islam are that it should be loose-fitting, it should not be transparent or revealing and it should not be attire specifically worn by men only.
10 See, e.g. Singapore Islamic Scholars and Religious Teachers Association (PERGAS), Sheikh Al-Azhar About
Hijab Ban in Singapore, Straits Times, 15 February 2004. See also Bayan al-majlis al-Urubi Li-’l-Ifta’ wa-lbuhuth hawla mas’alat al-hijab fi Firansa [Declaration of the European Council for Fatwas (Islamic religious
rulings) and Research concerning the issue of the headscarf in France], Dublin, 3 January 2004, 2.
11 Ali Jum’ah, Hijab: Religious Symbol or Obligation?, 12 January 2004, (www.islamonline.net/servlet/
Satellite?pagename¼IslamOnline-English-Ask_Scholar/FatwaE/FatwaE&cid¼1119503547808).
12 See, e.g. K. Bennoune, Secularism and Human Rights: A Contextual Analysis of Headscarves, Religious
Expression, and Women’s Equality under International Law, 45 Columbia J Transnational L (2007), 367 –
426, at 390 –391.
13 See Department for Communities and Local Government (DCLG), Engaging with Muslim Women: A Report from
the Prime Minister’s Event, 10 May 2006, DCLG, London, (September 2006), 9 (www.womenandequalityunit.
gov.uk/publications/muslimwomenfeedrep.pdf).
656
Chinese JIL (2007)
does not oblige men to veil.14 Thus, compared to Muslim women, Muslim men are much
free to decide what parts of the body to cover. More particularly, several recent cases15 have
raised the issue whether women should be allowed to wear the Islamic dress in public places
and, in particular, whether female Muslim pupils/students and Muslim teachers should be
permitted to wear the Islamic dress in public schools.16 For this reason, the focus of the
analysis in this article is on the forms of female Muslim dress. Since the recent cases have
mainly arisen in the educational context, the article examines the impact of the restrictions
on female Muslim dress on the right to freedom of religion, the right to receive education (as
a pupil/student) and the right to educate or the right to work (as a teacher). While some
commentators have examined the issue of religious clothing generally, this has been
addressed mainly through the lens of the right to freedom of thought, conscience, religion
and expression.17 Only very limited attention has been given to the right to education and
the right to work dimension arising out of the ban on the right to wear religious clothing
and religious symbols in State schools, and how this has disproportionately affected
female Muslims rights to education and work for whom the wearing of such religious
dresses is considered a religious obligation.
5. Although it is legitimate to examine the issue from the perspective of freedom of religion or expression, limiting it to this approach (without giving due attention to the rights to
education and work) tends to reinforce the historical marginalization of economic, social and
cultural rights (ESCRs) and claims that such rights are not justiciable.18 This marginalization
disproportionately affects the most vulnerable groups including women generally, and in
some contexts Muslim women in particular. In Europe, for example, it has been established
that regardless of their ethnic background and/or approach to religion, many European
Muslims are facing discrimination in employment, education and housing which leads to
14 See above n. 8–9.
15 See, e.g. Committee on the Elimination of Discrimination against Women, Rahime Kayhan v. Turkey, Communication No -8/2005, CEDAW/C/34/D/8/2005 (2006); Human Rights Committee (HRC), Raihon
Hudoyberganova v. Uzbekistan, Communication No. 931/2000, U.N. Doc. CCPR/C/82/D/931/2000
(2004); the Grand Chamber of the European Court of Human Rights, Leyla S¸ahin v. Turkey, Application
no. 44774/98, Judgment of 10 November 2005, [2007] EHRR 5 (hereinafter GC Judgment); House of
Lords, R (on the application of Begum (by her litigation friend, Rahman)) v. Headteacher and Governors of
Denbigh High School, [2006] UKHL 15, (hereinafter Begum case); German Constitutional Court, Ludin
v. Land Baden-Wu¨rttemberg Case No 2BvR 1436/02, Judgment of 24 September 2003 (hereinafter, Ludin);
Florida Circuit Court, Freeman v. State of Florida, No. 2002-CA-2828, 2003 WL 21338619 (6 June 2003).
For a discussion, see Patrick T. Currier, Freeman v. State of Florida: Compelling State Interests and the Free Exercise of Religion in Post-September 11th Courts, 53 Catholic University LR (2004), 913 –942.
16 See Report of the Special Rapporteur on Freedom of Religion or Belief (Ms Asma Jahangir), E/CN.4/2005/61
(20 December 2004), para. 64; IRLA, above n.1, para. 4.
17 See, e.g. Ingvill T. Plesner, The European Court of Human Rights Between Fundamentalist and Liberal Secularism,
in: Strasbourg Conference, (July 2005), (www.humanrights.uio.no/omenheten/seminar/forum/plesnerpaper.
pdf); S. Langlaude, Indoctrination, Secularism, Religious Liberty, and the ECHR, 55(4) ICLQ (2006), 929–
944; P.M. Taylor, 3 The Questionable Grounds of Objections to Proselytism and Certain Other Forms of Religious
Expression, 3 Brigham Young University LR (2006), 811–836 (www.lawreview.byu.edu/archives/2006/3/
8TAYLOR.FIN.pdf)
18 See On the justiciability of ESCRs, see generally, F. Coomans (ed), Justiciability of Economic and Social Rights:
Experiences from Domestic Systems (Intersentia 2006).
Ssenyonjo, The Islamic Veil 657
their social marginalization.19 The most visible symbol of female Muslim identity, the headscarf, is thus often interpreted solely as a sign of gender inequality and used on occasion as
justification for social exclusion—ignoring its multiple religious and cultural dimensions.20
In the European context, discrimination against Muslims and hostility to the Islamic dress
can be attributed to Islamophobic attitudes/acts (ranging from verbal threats through to physical attacks) as well as to racist and xenophobic resentment towards migrants and minorities in
Europe, especially after the events of 9/11 (2001) in the United States, 7/7 (2005) in the UK,
the 7/29 –30 (2007) failed car bomb attacks in London and Glasgow Airport, and similar
terrorist atrocities in other parts of the world.21 As shown below, Muslim women who
choose to wear the hijab are often perceived as agents of ‘‘Islamic fundamentalism’’ or ‘‘jihadist
terrorism’’, and as visible indicators of the inassimilable nature of Muslims in Europe.
6. In the practice of Muslims, the Islamic dress for women takes three main forms, namely
(i) the heard scarf (khimar ), veil covering the hair and the neck or long enough to cover the
bosom; (ii) loose robe, the head-to-toe garment that obscures women’s bodily features and
hides all parts of the body except hands and eyes called jilbab and (iii) the full veil (an allenveloping garment) covering the whole of the body (burka) and including the face veil
(niqab/purdah),22 as enforced by the Taliban in Afghanistan.23 From an international
human rights perspective, it has been accepted that ‘‘the wearing of distinctive clothing or
head-coverings’’ constitutes part of the observance and practice of religion or belief, 24 in
public including in schools and in universities or in private,25 as protected by several international human rights instruments such as Article 18 of the International Covenant on Civil
and Political Rights (ICCPR).26
7. The ban on the Islamic dress and similar prohibitions of any of the above types of the
Islamic dress can involve the intersection of a number of international human rights including the right to freedom of religion, racial and gender discrimination, minority rights and
the right to education.27 This article examines, from an international and comparative
19 See EUMC, above n. 5, 44 –59.
20 Ibid. at 39. Niraj Nathwani has noted that: ‘‘An Islamic headscarf could mean: loyalty to tradition, belief in chastity of women, symbol of religious identity, respect for wishes of parents and families, signal of not being sexually
available, expression of cultural identity, refusal to westernis’’. See Niraj Nathwani, Islamic Headscarves and
Human Rights: A Critical Analysis of the Relevant Case Law of the European Court of Human Rights, 25(2)
Netherlands QHR (2007), 221 – 254, at 244 citing Ludin (n. 15), para. 52.
21 EUMC, above n. 5, 22 –29. The Muslim News, London Imam Seriously Injured in Islamophobic Attack
(13 August 2007), (www.muslimnews.co.uk/index/press.php?pr=246).
22 The niqab covers most of the face, leaving only the eyes (or one eye) uncovered or covering the eyes too with a
transparent material.
23 Human Rights Watch (HRW), Humanity Denied: Systematic Violations of Women’s Rights in Afghanistan,
Vol. 13, No.5 (c), October 2001, (www.hrw.org/reports/2001/afghan3/afgwrd1001.pdf ).
24 HRC, General Comment 22, Article 18 (48th session, 1993), UN Doc HRI\GEN\1\Rev.1 at 35 (1994), para. 17.
25 HRC, Raihon Hudoyberganova v. Uzbekistan, above n. 15, para. 6.2.
26 See above n. 2, entered into force 23 March 1976, 160 States parties as of 6 December 2006.
27 See Dominic McGoldrick, Human Rights and Religion: The Islamic Headscarf Debate in Europe, (Hart Publishing 2006), 237 –287.
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human rights perspective, the question of whether female Muslims ( pupils, students
and teachers) have a right to wear the Islamic dress, or any of its features, in public
schools.28 In particular, the article deals with two questions: (i) whether the prohibition
of female Muslim pupils from wearing the Islamic dress while at State primary and secondary schools amounts to an unjustifiable violation of the right to education and/or an unjustifiable violation of freedom to manifest one’s religion or beliefs. (ii) If a State (or a non-State
actor) prohibits a female Muslim teacher from wearing the hijab while at a State school,
does this violate the teacher’s right to work and/or the teacher’s right to freedom of religion
or belief? The article begins with a discussion of the female Islamic dress and its impact
on freedom of religion and the right to education (Section II). It goes on to examine
the impact of the bans, or similar restrictions, on the Islamic dress in public schools on
the teachers’ right to work (Section III), followed by some concluding observations
(Section IV).
II. The female islamic dress: pupil/student freedom of religion
and the right to education: selected examples
8. The right to education is guaranteed in several international human rights instruments29
as an essential part of the contemporary human rights discourse and considered as one of the
‘‘most complex human rights’’ in international law.30 Under Article 13 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR),31 States parties specifically
recognized that ‘‘primary education shall be compulsory and available free to all’’, that
‘‘secondary education in its different forms, including technical and vocational secondary
education, shall be made generally available and accessible’’ and that ‘‘higher education
shall be made equally accessible to all, on the basis of capacity’’. At a regional level, the
right to education is also firmly recognized in regional human rights treaties in Africa,
America and Europe.32 The right to education consists of a variety of rights and freedoms
28 Regarding the hijab in universities, see Raihon Hudoyberganova v Uzbekistan, above n. 15.
29 See, e.g. UDHR, Article 26; Convention on the Rights of the Child (CRC), GA Res 44/25, annex, 44 UN
GAOR Supp. (No. 49) at 167, UN Doc A/44/49 (1989), Article 28. The CRC entered into force 2 September
1990. The Convention had been ratified by 192 States except only by the US and Somalia (although both
signed it).
30 See M. Nowak, The Right to Education, in: A. Eide et al. (eds), Economic, Social and Cultural Rights: A Textbook (Martinus Nijhoff, 2001), 268 –271. See also J.L. Gomez del Prado, Right to Education, UN Doc E/
C.12/1998/23.
31 UN Doc A/6316 (1966), 993 UNTS 3, 155 State parties as of 1 November 2006.
32 See, e.g. ECHR, above n. 2, Article 14 together with Article 2 of Protocol I thereof ); African Charter on Human
and Peoples’ Rights (ACHPR), OAU Doc CAB/LEG/67/3 rev. 5, 21 ILM 58 (1982), entered into force 21
October 1986 Article 2 and 17(1); African Charter on the Rights of the Child, OAU Doc. CAB/LEG/24.9/
49 (1990), entered into force 29 November 1999, Article 11; Additional Protocol to the ACHPR on the
Rights of Women in Africa, CAB/LEG/66.6 (13 September 2000); reprinted in 1 African HRLJ (2001) 40,
entered into force 25 November 2005, Article 12; and the Additional Protocol to the American Convention
on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), OAS
Treaty Series No. 69 (1988), entered into force 16 November 1999, Article 3 and 13.
Ssenyonjo, The Islamic Veil 659
for parents, children or students and of different obligations for States.33 States are obliged to
make education available, accessible, acceptable and adaptable.34 Educational institutions and
programmes have to be accessible to everyone, without discrimination, within the jurisdiction
of the State party.35 In order to make education accessible, States are obliged, among others, to
eliminate racial discrimination in education,36 and to take ‘‘all appropriate measures’’ to eliminate discrimination against women in order to ensure equal rights with men in the field of
education.37 In addition, States are obliged to ensure that education is ‘‘acceptable both to
parents and to children’’.38 This requires a guaranteed quality of education39 and respect
for parental freedom, to have their children educated in conformity with parents’ religious,
moral or philosophical convictions.40 Since ‘‘everyone’’ is guaranteed the right to freedom
of thought, conscience and religion,41 educational institutions must respect this right.
9. However, freedom to ‘‘manifest’’ one’s religion or beliefs (by dress or otherwise) is not
absolute and may be subject only to such limitations as are ‘‘prescribed by law’’ and are
‘‘necessary’’ to protect public safety, order, health or morals or the fundamental rights
and freedoms of others.42 The bans or limitations on the female Islamic dress, or any
feature of female Islamic dress (the headscarf, jilbab, burka or niqab ), in public schools
raise two main issues with respect to the right to education. First, does the ban interfere
33 Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 13: The Right to Education (21st session, 1999), UN Doc E/C.12/1999/10 (1999), paras. 46 –48.
34 See Reports of the Special Rapporteur on the Right to Education, Katarina Tomasˇevski, Preliminary Report, E/
CN.4/1999/49 (13 January 1999), para. 50; Progress Report, E/CN.4/2000/5 (1 February 2000), paras. 32 –
65; Annual Report, E/CN.4/2001/52 (9 Jan. 2001); Annual Report, E/CN.4/2002/60, (7 January 2002)
paras. 22 – 45; Mission to China, E/CN.4/2004/45/Add.1, para. 6; K. Tomasˇevski, Human Rights Obligations: Making Education Available, Accessible, Acceptable and Adaptable, Right to Education Premiers,
Vol. 3, (Novum Grafiska AB, 2001).
35 CESCR, General Comment 13, above, n. 33, para. 6(b).
36 International Convention on the Elimination of All Forms of Racial Discrimination (CERD) UN GA Res. 2106
(XX) of 21 December 1965. Entered into force 4 January 1969. 173 States Parties as of 1 November 2006. See
also Article 3(1) of the Declaration on the Elimination of All Forms of Racial Discrimination, proclaimed by the
UNGA Res. 1904 (XVIII) of 20 November 1963 that had previously urged UN Member States to undertake
particular efforts ‘‘to prevent discrimination based on race, colour or ethnic origin, especially in the fields
of . . . education. . .’’.
37 Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), GA Res 34/180, 34
UN GAOR Supp. (No. 46) at 193, UN Doc A/34/46, entered into force 3 September 1981, 185 States parties
as of 1 November 2006, Article 10.
38 Tomasˇevski, above n. 34, E/CN.4/1999/49, para. 62.
39 Id, Education Denied (Zed 2003), 51.
40 ICESCR, Article 13(3); ICCPR, Article 18(4); ECHR Protocol 1, Article 2; Protocol of San Salvador, Article
13(4); African Charter on the Rights and Welfare of the Child, Article 11(4).
41 ICCPR, Article 18(1); UDHR, Article 18; ACHPR, Article 8 and ECHR, Article 9; American Convention on
Human Rights (ACHR), 1144 U.N.T.S. 123, Article 12. For a discussion of freedom of religion, see P.M. Taylor,
Freedom of Religion: UN and European Human Rights Law and Practice (Cambridge University Press 2005);
C. Evans, The Right to Freedom of Religion Under International Law (Oxford University Press 2001); Reports
of the Special Rapporteur on Freedom of Religion or Belief/Religious Intolerance, E/CN.4/2006/5 (9 January
2006); E/CN.4/2005/61(20 December 2004); E/CN.4/2004/63 (16 January 2004); E/CN.4/2003/66 (15
January 2003); E/CN.4/2002/73 (14 March 2002) and E/CN.4/2001/63 (13 February 2001).
42 ICCPR, Article 18(3); I.T. Plesner, Legal Limitations to Freedom of Religion or Belief in School Education, 19
Emory ILR (2006), 557 –586.
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Chinese JIL (2007)
with the right of the female student, who might not wish to remove the female Islamic dress
for religious reasons, to access public education? Secondly, at the level of primary (and secondary) education, does the ban fail to respect the liberty of parents to ensure the religious and
moral education of their children in conformity with their own convictions? Can such a ban
be justified at a higher education level such as in universities? This section considers some
recent cases ( from Turkey, the UK, France, Israel, Egypt and Malaysia) in which Courts
have examined restrictions on the female Islamic dress and alleged violations of human
rights including freedom to manifest religion, the right to education and the right to work.
II.A. The ban on islamic dress in public universities in Turkey and the
right to education: Leyla S¸ahin v. Turkey case
10. Until 1923, the Republic of Turkey was under the caliphate (Islamic leadership).43 By
2006, Turkey had a population of approximately 69.6 million, 99 per cent being Muslims.44
After its war of independence, the Republic of Turkey was established as a secular state in
1923.45 In pursuit of this goal, the Islamic veil was banned in the 1930s other than in
places of worship or at religious ceremonies.46 The ban was later extended to educational
institutions including universities.47 The Turkish government has sporadically enforced a
ban on headscarves for students and teachers in universities since the 1960s.48 However,
in 1997, implementation of the ban intensified when the Turkish Army compelled the
government to implement the ban without exception, and since that time, thousands of
women are barred from higher education in Turkey each year because of the headscarf
ban.49 Does such a ban interfere with the right of a female student, who might not wish
to remove the female Muslim dress for religious reasons, to access public education?
11. The Grand Chamber (GC) of the European Court of Human Rights (ECtHR) found
in November 2005 that a ban on the (student) Islamic headscarf in a Turkish State university
interfered with the student’s right to manifest her religion under Article 9(1) of the ECHR,
but found the interference justified under Article 9(2) of the ECHR in Leyla S¸ahin
v. Turkey.50 In justifying the ban on the Islamic headscarf, the majority in that case,
43 See Empire in Turkey: The Ottoman Caliphate (1290 –1924) in History of the Muslims Empires of Islam,
(www.biblia.com/islam/history.htm#Turkey); A. Stiles, The Ottoman Empire 1450 –1700 (Hodder and
Stoughton 1991).
44 See Turkey in International Religious Freedom Report 2006, (www.state.gov/g/drl/rls/irf/2006/71413.htm)
45 Turkish Constitution 1982, Article 2 provides: ‘‘The Republic of Turkey is a democratic, secular and social State
based on the rule of law, respectful of human rights. . .’’.
46 The Dress Regulations Act of 3 December 1934 (Law No. 2596).
47 For example, on 20 December 1982, the Higher-Education Authority issued a circular banning wearing the hijab
in lecture theatres. On the history of the headscarf ban in Turkey and its impact on students and teachers in
Turkey, see Human Rights Watch (HRW), Memorandum to the Turkish Government on Human Rights
Watch’s Concerns with Regard to Academic Freedom in Higher Education, and Access to Higher Education
for Women who Wear the Headscarf, Human Rights Watch Briefing Paper, 24 June 2004, 26 –32.
48 Human Rights Watch (HRW), Turkey: Headscarf Ruling Denies Women Education and Career, HRW,
New York, 16 November 2006, (www.hrw.org/english/docs/2005/11/16/turkey12038_txt.htm)
49 Ibid.
50 Application no. 44774/98, above n. 15.
Ssenyonjo, The Islamic Veil 661
relying exclusively on the reasons cited by the national authorities and Courts, put forward,
in general and abstract terms, two main arguments: secularism and equality.51 The GC concluded that Turkey had a legitimate interest in maintaining secularism in its State
universities.52
II.A.i. Background
12. It is worth noting the facts in the S¸ahin case in order to evaluate the ECtHR reasoning.
Leyla S¸ahin, a Turkish national who was born in 1973 from a traditional Muslim family,
believed that she had a religious duty to wear the Islamic headscarf. She enrolled in the
Faculty of Medicine at Istanbul University on 26 August 1997, after completing four
years of study at Bursa University, during which time she regularly wore the Islamic headscarf. On 23 February 1998, the Vice-Chancellor of Istanbul University issued a circular
to staff and faculty directing that:
By virtue of the Constitution, the law and regulations, and in accordance with the
case-law of the Supreme Administrative Court and the European Commission of
Human Rights and the resolutions adopted by the university administrative
boards, students whose ‘heads are covered’ (who wear the Islamic headscarf ) and students (including overseas students) with beards must not be admitted to lectures,
courses or tutorials.53
13. This circular required the university faculty and staff to enforce the new regulations and
outlined the disciplinary measures that would be taken against students who violated the
regulations. Consequently, in March, April and June 1998 the university’s staff and
faculty denied Ms S¸ahin admission to written examinations, enrolment in courses, and
admission to lectures because she was wearing the Islamic headscarf. In May 1998, the
Dean of the university issued Ms S¸ahin a warning for violating the rules on dress.
14. Ms S¸ahin applied to the Istanbul Administrative Court (Administrative Court) on 29
July 1998, and requested that the Court void the circular. She alleged that the circular lacked
a statutory basis and that the Vice-Chancellor’s office had no power to regulate student dress
in institutions of higher learning. The Istanbul Administrative Court held that the university
had the power to regulate student dress to maintain order and dismissed her complaint. Her
appeal was similarly dismissed. On 13 April 1999, the university suspended Ms S¸ahin from
the Faculty of Medicine for one semester because she violated the dress code and participated
in a student demonstration against the new regulation. The university also brought
51 Ibid., para. 112 –114. The GC recalled the judgment of 7 March 1989 of the Turkish Constitutional Court,
which stated: ‘‘The principle [of secularism] prevented the State from manifesting a preference for a particular
religion or belief; it thereby guided the State in its role of impartial arbiter, and necessarily entailed freedom
of religion and conscience. It also served to protect the individual not only against arbitrary interference by
the State but from external pressure from extremist movements’’.
52 By 16 votes to one, the GC, whose judgments are final under Article 44 of the ECHR, found that there had been
no violation of Article 9 ( freedom of thought, conscience and religion) of the ECHR. The 16 votes included the
Turkish judge, Judge Turmen, who had also sat in the Chamber.
53 Leyla S¸ahin v. Turkey, above n. 15, para. 16.
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Chinese JIL (2007)
proceedings against other students for participating in the demonstration. Ms S¸ahin applied
again to the Administrative Court to invalidate the university’s actions. The Administrative
Court denied her request on the grounds that settled case law demonstrated that the university was acting within its regulatory power to maintain order on the university’s campus. On
16 September 1999, Ms S¸ahin abandoned her studies at Istanbul University and enrolled in
Vienna University.
15. Ms S¸ahin lodged a complaint with the European Commission of Human Rights (the
Commission) on 21 July 1998. She alleged that the university’s regulations banning the hijab
violated her rights under Articles 8 ( private life), 9 (religion), 10 (expression) and 14 (nondiscrimination) of the ECHR, and Article 2 of Protocol No. 1 (unjustified interference with
the right to education).54 In the Chamber and subsequent GC judgments, the Court held
that Article 9 and Article 2 of Protocol No. 1 were dispositive of the case and focused on
those Articles in both its opinions.
16. A Chamber judgment of seven judges was delivered on 29 June 2004.55 The Chamber
found unanimously that the Istanbul University regulations restricting the right to wear the
Islamic headscarf and the measures taken thereunder had interfered with the applicant’s right
to manifest her religion. It went on to find that the interference was ‘‘prescribed by law’’ and
pursued one of the legitimate aims set out in the second paragraph of Article 9 of the ECHR.
It was justified in principle and proportionate to the aims pursued and could therefore be
regarded as having been ‘‘necessary in a democratic society’’.56 The Chamber concluded
that there were no separate violations under the other Articles. On 27 September 2004,
Ms S¸ahin appealed against the Chamber’s decision and requested a GC hearing. On 10
November 2005, the GC Chamber delivered its judgment on Ms S¸ahin’s appeal as shown
below.
II.A.ii. Freedom to manifest religion in universities
17. The GC had to consider whether the applicant’s right under Article 9 was interfered with
and, if so, whether the interference was ‘‘prescribed by law’’, pursued a legitimate aim and
was ‘‘necessary in a democratic society’’ within the meaning of Article 9(2) of the ECHR.
As to whether there was ‘‘interference’’, the GC rightly endorsed the following findings of
the Chamber:
The applicant said that, by wearing the headscarf, she was obeying a religious precept
and thereby manifesting her desire to comply strictly with the duties imposed by the
Islamic faith. Accordingly, her decision to wear the headscarf may be regarded as
54 She complained of a violation of Article 14, taken together with Article 9, arguing that the prohibition on wearing
the Islamic headscarf obliged students to choose between education and religion and discriminated between
believers and non-believers.
55 Application no. 44774/98 (2005) 41 EHRR 8 (hereinafter Chamber judgment). For a discussion, see
A. Nieuwenhuis, State and Religion, Schools and Scarves, An Analysis of the Margin of Appreciation as Used
in the Leyla S¸ahin v. Turkey case, Decision of 29 June 2004, Application Number 44774/98, 1 European Constitutional LR (2005), 495 –510.
56 See Ibid., Chamber Judgment, paras. 66 –116.
Ssenyonjo, The Islamic Veil 663
motivated or inspired by a religion or belief and, without deciding whether such
decisions are in every case taken to fulfil a religious duty, the Court proceeds on
the assumption that the regulations in issue, which placed restrictions of place and
manner on the right to wear the Islamic headscarf in universities, constituted an
interference with the applicant’s right to manifest her religion.57
18. It is striking to note that the ECtHR avoided to make a specific ‘‘finding’’ that the restrictions on the Islamic headscarf on the facts in S¸ahin case interfered with the applicant’s right
to manifest her religion. Instead, it preferred to proceed on the basis of the ‘‘assumption’’
that the regulations constituted interference. Therefore, no clear test was set out for later
cases. This means that in the future there is a possibility that the Court may not accept
that wearing a headscarf is a religious duty. As Carolyn Evans noted the fact that ‘‘the
Court was unwilling to state this [the wearing of a headscarf by an adult university
woman, who believed that the wearing of such garments is a compulsory obligation, was a
religious duty] explicitly in its judgment demonstrates its general reluctance to acknowledge
the value and religious importance of many key religious practices outside of Christianity’’.58
In particular, the ECtHR seems to be reluctant to give protection to Islamic practices. Two
examples can be cited here. First, in Dahlab v. Switzerland,59 the Court stated that it
‘‘appears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a
democratic society must convey to their pupils’’.60 The Court did not explain and substantiate these broad claims e.g. why is it ‘‘difficult’’ to reconcile the wearing of the Islamic headscarf with ‘‘equality and non-discrimination’’? Second, in Refah case, the GC concurred in
the Chamber’s view that ‘‘Sharia [Islamic law primarily derived from Quran (the Islamic
holy book) and Sunnah (sayings and actions of Prophet Muhammad, the prophet of
Islam)] is incompatible with the fundamental principles of democracy, as set forth in the
Convention [ECHR]’’.61 This is a very broad statement in as far as it is not limited to
some specific interpretations of Sharia, but extends to Sharia in general. Yet, the fact is
that although the primary sources of Sharia are the Quran and the Sunnah, legal interpretations allow for varied and often accommodating interpretations of the Sharia compatible
with the fundamental principles of democracy, including the rights of women.62
57 See Ibid., the Chamber Judgment, para. 71; and the GC Judgment, para. 78 (emphasis added).
58 See C. Evans, The ‘Islamic Scarf’ in the European Court of Human Rights, 4 Melbourne JIL (2006), 4
(www.austlii.edu.au/au/journals/MelbJIL/2006/4.html#fnB3).
59 App. 42393/98, ECHR 2001-V, Admissibility Decision of 15 February 2001, 449 (discussed in Section III.B.).
60 Ibid.
61 ECtHR, Refah Partisi (The Welfare Party) and Others v. Turkey, Judgment of 13 February 2003, para. 132. Eva
Brems has noted that ‘‘in the European System the idea lives that human rights are part of a ‘‘common cultural
heritage’’ and that Islam is not seen as part of this heritage’’. See E. Brems, Above Chldren’s Heads: the Headscarf
Controversy in European Schools from the Perspective of Children’s Rights, 14 IJ Children’s Rights (2006) 11 –
136, at 130.
62 See, e.g. N.A. Shah, Women’s Human Rights in the Koran: an Interpretive Approach, 28(4) Human Rights
Quarterly (2006), 868 –903. See also I. Gallala, The Islamic Headscarf: an Example of Surmountable Conflict
between Shari’a and the Fundamental Principles of Europe, 12(5) European LJ (2006) 593 –612.
664
Chinese JIL (2007)
19. Having accepted such a negative and one-sided world view of Sharia (yet it is open to a
variety of interpretations), it is less surprising that the manifestation of religion by the Islamic
headscarf (which is linked to Sharia), receives inferior protection from the Court. How can
the Court be expected to protect a practice it considers ‘‘discriminatory’’ without explaining
how discriminatory it is? In any case, manifestation of religion is considered to be ‘‘not
central to the effective operation of political democracy’’ and ‘‘the underlying philosophical
justification for the right to religious freedom remains somewhat vague’’ leading to the adoption of a wider margin of appreciation and the lack of extensive judicial scrutiny.63
20. In deciding whether the interference was ‘‘prescribed by law’’,64 pursued a ‘‘legitimate
aim’’ and ‘‘necessary in a democratic society’’, the GC judgment seems to lead to a very high
degree of deference to State authorities. The GC reiterated that, under its settled case-law:
the expression ‘‘prescribed by law’’ requires firstly that the impugned measure should
have a basis in domestic law. It also refers to the quality of the law in question, requiring that it be accessible to the persons concerned and formulated with sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree
that is reasonable in the circumstances, the consequences which a given action may
entail and to regulate their conduct.65
21. It went on to note that ‘‘it is primarily for the national authorities, notably the Courts, to
interpret and apply domestic law’’.66 In that connection, it noted that the Constitutional
Court had ruled that freedom of dress in institutions of higher education was not absolute.
The Constitutional Court had held that authorising students to ‘‘cover the neck and hair
with a veil or headscarf for reasons of religious conviction’’ in the universities was contrary
to the Constitution.67 That decision of the Constitutional Court, which was both binding
and accessible, as it had been published in the Official Gazette of 31 July 1991, supplemented the letter of transitional Section 17 and followed the Constitutional Court’s previous case-law. In addition, the Supreme Administrative Court had by then consistently held
for a number of years that wearing the Islamic headscarf at university was not compatible
with the fundamental principles of the Republic ‘‘since the headscarf was in the process
of becoming the symbol of a vision that was contrary to the freedoms of women and
those fundamental principles’’.68
22. Furthermore, it was noted that the regulations on wearing the Islamic headscarf had
existed at Istanbul University since 1994 at the latest, well before the applicant enrolled
there.69 In these circumstances, the Court found that there was a legal basis for the
63 See T. Lewis, What Not to Wear: Religious Rights, the European Court, and the Margin of Appreciation, 56(2)
ICLQ (2007), 395 –414, at 401.
64 The GC Judgment, above n. 15, para. 88.
65 The GC Judgment, para. 84.
66 Ibid., para. 87.
67 Ibid., para. 92.
68 Ibid., para. 93.
69 Ibid., para. 97.
Ssenyonjo, The Islamic Veil 665
interference in Turkish law, and that the law was also accessible and can be considered sufficiently precise in its terms to satisfy the requirement of foreseeability. It would have been
clear to the applicant, from the moment she entered Istanbul University, that there were
restrictions on wearing the Islamic headscarf on the university premises and, from the
date the circular was issued on 23 February1998, that she was liable to be refused access
to lectures and examinations if she continued to wear the headscarf.70
23. The GC concluded that interference in issue was justified in principle and proportionate to the aim pursued. It was accepted that the impugned interference primarily pursued the
legitimate aims of protecting the ‘‘rights and freedoms of others’’ and of protecting ‘‘public
order’’.71 Interestingly, the Court’s GC judgment did not address critically whether the
wearing of the Islamic headscarf encouraged disorderly conduct or constituted a threat to
public order in the Istanbul University. Although it noted that one of the justifications
for the restriction at Istanbul University was the potential for the Islamic headscarf to interfere with a physician’s ability to engage safely in laboratory work, this justification was not
the crux of the Turkish Constitutional Court’s ruling, which invoked fear of public disorder
as the general basis for such restrictions.
24. With respect to the necessity of the interference in a democratic society, the GC
observed that:
in democratic societies, in which several religions coexist within one and the same
population, it may be necessary to place restrictions on freedom to manifest one’s
religion or belief in order to reconcile the interests of the various groups and
ensure that everyone’s beliefs are respected.72
25. The GC discussed the political history and evolution of the Turkish state, the manner in
which Turkish Courts and legislators developed regulations on the wearing of the Islamic
headscarf, and the variations among European States in regulating manifestations of religious
belief and practice in educational institutions. Turkey has an established history of regulating
religious attire in public and women’s dress in particular. Public dress codes during the two
decades following the proclamation of the Turkish Republic in October 1923 sought to
promote gender equality under the law and to establish secularism. The GC noted that
the Turkish state’s regulations on the wearing of the Islamic headscarf were an outgrowth
of its evolution as a symbol of Islam in Turkey’s modern political landscape. The Turkish
Supreme Administrative Court relied on this assumption when it rendered a judgment in
December 1984 that recognized limitations on the wearing of the Islamic headscarf in educational institutions as lawful. Similarly, the Turkish Constitutional Court justified the regulations on the wearing of the Islamic headscarf under the Turkish Republic’s constitutional
guarantees of gender equality and secularism. The Constitutional Court held that the principles of the Turkish Republic and the Constitution guarantee the individual right to choose
70 Ibid., para. 98.
71 Ibid., para. 99.
72 Ibid., para. 106.
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Chinese JIL (2007)
whether to follow a particular religion, and that permitting the Islamic headscarf in educational institutions amounts to government endorsement of Islam because the educational
institutions at issue are State universities. The Constitutional Court also recognized that the
Islamic headscarf is both a religious garment and a political statement. Therefore, the
freedom to manifest one’s religion can be restricted on public order grounds to defend
the constitutional principle of secularism.
26. The GC agreed with this assessment and found that the regulations implemented at
Istanbul University were within the bounds of the Constitutional Court’s rulings. This
reliance on the national constitutional principles of the Turkish Republic, which are ultra
vires the ECHR, lessened the Court’s supervisory role. The GC considered the regulations
on the Islamic headscarf, or the absence thereof, in each Contracting State, and noted
that Azerbaijan and Albania are the only other Contracting States that regulate the
wearing of the Islamic headscarf at the university level.73 However, instead of examining
these two States whose population like Turkey is predominantly Muslim, the Court examined in some detail the system in western European States whose population is not predominantly Muslim and none of which at the relevant time had restrictions on wearing
the Islamic dress (or any other religious attire) at universities.74 The GC looked beyond
any limited religious reason that a particular individual may have had for wearing an
Islamic headscarf. It recognized the political overtones that the Islamic headscarf could introduce at the university or secondary school setting. The Court noted that it ‘‘does not lose
sight of the fact that there are extremist political movements in Turkey which seek to
impose on society as a whole their religious symbols and conception of a society founded
on religious precepts’’.75 This suggests that there is a link between the wearing of the
hijab and Islamic fundamentalism or what has been referred to as ‘‘jihadist terrorism’’.76
However, it was not established that S¸ahin belonged to any of the fundamentalist groups
within or outside Turkey.
27. As disputed in the dissenting opinion by Judge Franc¸oise Tulkens (a female judge
from Belgium) with respect to Article 9:
Merely wearing the headscarf cannot be associated with fundamentalism and it is
vital to distinguish between those who wear the headscarf and ‘‘extremists’’ who
seek to impose the headscarf as they do other religious symbols. Not all women
who wear the headscarf are fundamentalists and there is nothing to suggest that
the applicant held fundamentalist views. She is a young adult woman and a university student and might reasonably be expected to have a heightened capacity to resist
73 The GC Judgment, above n. 15, para. 55. In 2006, 96 per cent of Azerbaijan’s population, and about 65 – 70 per
cent of Albania’s population, was Muslim. See International Religious Freedom Report 2006, Azerbaijan
(www.state.gov/g/drl/rls/irf/2006/71368.htm) and Albania (www.state.gov/g/drl/rls/irf/2006/71364.htm).
74 The GC Judgment, above n. 15, paras. 56 –65. The Court considered France, Belgium, Austria, Germany, the
Netherlands, Spain, Sweden, Switzerland, the UK and Finland.
75 Ibid., para. 115, citing paras. 107 –109 of the Chamber Judgment, above n. 55.
76 See E. Rosand, The UN-led Multilateral Institutional Response to Jihadist Terrorism: Is a Global Counterterrorism Body Needed?, 11(3) J Conflict and Security L (2006), 399 –427.
Ssenyonjo, The Islamic Veil 667
pressure, it being noted in this connection that the judgment fails to provide any concrete example of the type of pressure concerned. The applicant’s personal interest in
exercising the right to freedom of religion and to manifest her religion by an external
symbol cannot be wholly absorbed by the public interest in fighting extremism.77
28. According to the majority in the GC, ‘‘where questions concerning the relationship
between State and religions are at stake, on which opinion in a democratic society may
reasonably differ widely, the role of the national decision-making body must be given
special importance’’.78 Accordingly, the choice of the extent and form such regulations
should take must inevitably be left up to a point to the State concerned, as it will depend
on the domestic context concerned.79 It was noted that by reason of their direct and continuous contact with the education community, the university authorities are in principle better
placed than an international Court to evaluate local needs and conditions or the requirements of a particular course.80 In effect, the Court effectively deferred twice—first, to the
views of the Government and, secondly, to the views of the university about the application
of these principles—thereby effectively limiting its supervisory role. The GC concluded:
it is the principle of secularism, as elucidated by the Constitutional Court, which is
the paramount consideration underlying the ban on the wearing of religious symbols
in universities. In such a context, where the values of pluralism, respect for the rights
of others and, in particular, equality before the law of men and women are being
taught and applied in practice, it is understandable that the relevant authorities
should wish to preserve the secular nature of the institution concerned and so consider it contrary to such values to allow religious attire, including, as in the present
case, the Islamic headscarf, to be worn.81
29. Although ‘‘secularism’’ is one of the founding principles of the Turkish Republic (under
Article 2 of the Turkish Constitution), it is doubtable whether it is appropriate for the
ECtHR to use this principle as the ‘‘paramount consideration’’ to restrict a right in the Convention, given that secularism has not been enumerated as a legitimate aim to restrict
freedom of religion or any other right in the Convention. The applicant’s arguments—
that the same values of pluralism, respect for the rights of others and equality before the
law of men and women should have allowed her to wear the Islamic headscarf82—were
not given serious attention and thus left unaddressed sufficiently. The justification for
banning the Islamic headscarf in a State university based on the principle of equality suggests
that wearing the headscarf is considered synonymous with inequality and discrimination
against women. This assumption is not only ‘‘analytically reductive’’ as it assumes a
77 The GC Judgment, above n. 15, Dissenting Opinion of Judge Tulkens (hereinafter ‘Tulkens Dissent’), para. 10.
78 The GC Judgment, above n. 15, para. 109.
79 Ibid., para. 109.
80 Ibid., para. 121.
81 Ibid., para. 116.
82 Ibid., paras. 100 –101; Chamber Judgment, above n. 55, para. 85 –88.
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Chinese JIL (2007)
homogeneity within Muslim women, but it also fails to take into account the complex
reasons why some Muslim women take an autonomous decision to wear the hijab as part
of their expression of identity and revolt against discrimination, not for submission to
male domination, militant religious or political reasons.83 How can the wearing of the headscarf voluntarily (by a university student) through her own choice, rather than because of
subordination to a particular man or to men generally, be contrary to equality of men
and women? Is the exclusion of women from important public spaces such as schools and
universities an effective way to achieve gender equality—whether in the short-run or in
the long run? Indeed, forcing Muslim women to take off their hijabs in the name of
defence of women’s rights may amount to a form of coercion that would impair freedom
of adults to have or to adopt a religion or belief of one’s free choice. As noted by Judge
Tulkens:
The applicant, a young adult university student, said – and there is nothing to
suggest that she was not telling the truth – that she wore the headscarf of her own
free will. In this connection, I fail to see how the principle of sexual equality can
justify prohibiting a woman from following a practice which, in the absence of
proof to the contrary, she must be taken to have freely adopted. . . ‘‘Paternalism’’
of this sort runs counter to the case-law of the Court, which has developed a real
right to personal autonomy on the basis of Article 8.84
30. Judge Tulkens found that there had been a violation of the applicant’s right to manifest
freedom of religion because the ban on wearing the Islamic headscarf on the university premises was not based on reasons that were relevant and sufficient, and it could not be considered to be interference that was ‘‘necessary in a democratic society’’ within the
meaning of Article 9(2) of the Convention.85 She expressed dislike for the majority’s wide
‘‘margin of appreciation’’ accorded to Contracting States in discharging their obligations
under the Convention. Judge Tulkens doubted that a lack of consensus among European
States should cause the Court to eschew its duty to supervise Contracting States’ efforts to
conform to Convention standards. She noted that ‘‘the issue raised in the application,
whose significance to the right to freedom of religion guaranteed by the Convention is
evident, is not merely a ‘local’ issue, but one of importance to all the member States.
European supervision cannot, therefore, be escaped simply by invoking the margin of
appreciation’’.86
83 See C.T. Mohanty, Feminism Without Borders (Duke University Press 2003), 34. See also C. Dwyer, Veiled
Meanings: Young British Muslim Women and the Negotiation of Difference, 6(1) Gender Place and Culture
(1999), 5; B. Parekh, A Varied Moral World, in: Moller-Okin (ed.), Is Multiculturalism Bad for Women?’,
(Princeton University Press, 1999), 73; D. Lyon and D. Spini, ‘Unveiling the Headscarf Debate’ 12(3) Feminist
LS (2004), 333 –345.
84 Tulkens Dissent, above n. 77, para. 12 citing Keenan v. the United Kingdom, Judgment 3 April 2001, (2001) 33
EHRR 38, para. 92; Pretty v. the United Kingdom, Judgment of 29 April 2002, [2002] ECHR 427, paras. 65 –
67; Christine Goodwin v. the United Kingdom, Judgment of 11 July 2002, (2002) 35 EHRR 18, para. 9.
85 Tulkens Dissent, ibid., para. 13.
86 Ibid., para. 3.
Q1
Ssenyonjo, The Islamic Veil 669
31. Although being a secular State with a predominantly Muslim population, Turkey has
experienced pressures from various political groups that ‘‘served to perpetuate the existing
inequality between women and men’’.87 Judge Tulkens expressed the view that the Court
had not properly demonstrated that Turkish secularism and public order had been threatened by permitting the wearing of the Islamic headscarf at Istanbul University. The only
instance of public disorder referred to by the Court was a student demonstration at Istanbul
University that was organized to avert the adoption of the regulation banning the Islamic
headscarf. Clearly, the regulation itself caused the disorder and not the wearing of the
Islamic headscarf. In the light of the State’s particular obligations to respect and protect
human rights, coercion by the State in banning headscarves is arguably even more serious
than coercion by private parties.88
32. Moreover, even legitimate efforts to eliminate coercion of those who do not wish to
wear the headscarf do not justify the State in coercing others not to do so.89 The Court
did not describe specific circumstances that would necessitate such regulations on public
order grounds at Istanbul University or in any other university in Turkey. Rather, it deferred
to the Turkish authorities to decide. As Judge Tulkens put it the Court ‘‘has shown itself less
willing to intervene in cases concerning religious practices which only appear to receive a subsidiary form of protection’’.90 She noted that the fact that:
the Grand Chamber recognised the force of the principle of secularism did not
release it from its obligation to establish that the ban on wearing the Islamic headscarf to which the applicant was subject was necessary to secure compliance with
that principle and, therefore, met a ‘‘pressing social need’’. Only indisputable facts
and reasons whose legitimacy is beyond doubt – not mere worries or fears – are
capable of satisfying that requirement and justifying interference with a right guaranteed by the Convention. Moreover, where there has been interference with a fundamental right, the Court’s case-law clearly establishes that mere affirmations do not
suffice: they must be supported by concrete examples. Such examples do not appear
to have been forthcoming in the present case.91
33. As noted above, the majority considered that wearing the headscarf contravened the principle of secularism. For Judge Tulkens, they took up a position on an issue that has been the
subject of much debate, namely the signification of wearing the headscarf and its relationship
with the principle of secularism.92 She noted that such a generalized assessment of that type
87 Committee on the Elimination of Discrimination Against Women, Concluding Observations: Turkey, A/52/
38/Rev.1, (12 August 1997), para. 164.
88 IRLA, above n. 1, Principle 9.
89 Ibid.
90 Tulkens Dissent, above n. 77, para. 6.
91 Ibid., para. 5 citing Smith and Grady v. the United Kingdom, Judgment of 27 September 1999; (2000) 29
EHRR 493, para. 89.
92 C.E. Bribosia and I. Rorive, ‘Le voile a` l’e´cole: une Europe divise´e’, Revue trimestrielle des droits de l’homme,
(2004), 958.
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Chinese JIL (2007)
(which does not distinguish between the prohibition of teachers from wearing Islamic headscarves from the position of pupils and students) gave rise to at least three difficulties.
34. First, the judgment does not address the applicant’s argument—which the Government did not dispute—that she had no intention of calling the principle of secularism, a
principle with which she agreed, into doubt. Secondly, there is no evidence to show that
the applicant contravened that principle through her attitude, conduct or acts. This is a
test the Court has always applied in its case-law.93 Lastly, the judgment makes no distinction
between teachers and students, whereas in the Dahlab v. Switzerland decision of 15 February
2001,94 which concerned a teacher, the Court expressly noted the role-model aspect which
the teacher’s wearing the headscarf had ( p. 14). While the principle of secularism requires
education to be provided without any manifestation of religion and while it has to be compulsory for teachers and all public servants, as they have voluntarily taken up posts in a
neutral environment, the position of pupils and students seems to be different.95 This is
clear, given the differences between the two student groups in terms of maturity, independence and capacity for decision-making.96
35. Indeed, in this case there was no evidence to show that wearing a headscarf by the
applicant or by other students affected the public order in the University or imposed any
kind of pressure (whether active physical or psychological) on the students who are not
wearing headscarves. It was also not shown that the headscarf ban in the Istanbul University
was taken completely in response to the failure of less severe measures. In several cases, the
Court has invoked the doctrine of ‘‘Less Restrictive Alternative’’, which demands the existence of a reasonable relationship of proportionality between the means employed and the
aim sought to be realized.97
36. Although the Court reiterated these principles in the S¸ahin case,98 it did not apply
them to this case. It did not consider whether the ban on headscarves was the only (less
severe) way to protect the rights of others who do not wear headscarves. It is important to
note that in the light of the unique context of the Court’s decision, the holding in the
S¸ahin case should not necessarily be generalized to other States in Europe (or elsewhere)
whose populations are not predominantly Muslim and that have not experienced the
same social conflicts that have occurred in Turkey.99 Turkish officials have long argued
that because Turkey is a predominantly Muslim State and because it is particularly susceptible to the political influences over the general population of certain Islamist trends, it has
needed to take additional precautions to protect its universities from the influences of such
93 Citing Kokkinakis v. Greece, Judgment of 25 May 1993, (1994) 17 EHRR 397; United Communist Party of
Turkey and Others v. Turkey, Judgment of 30 January 1998, (1998) 26 EHRR 121.
94 App. 42393/98, ECHR 2001-V, above n. 59.
95 Tulkens Dissent, above n. 77, para. 7.
96 Evans, above n. 58.
97 Y. Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia 2002), 15.
98 The GC Judgment, above n. 77, paras. 104 – 111.
99 IRLA, above n. 1, Background, para. 6.
Ssenyonjo, The Islamic Veil 671
forms of Islam on university students. Indeed, during the drafting of Article 9 of the ECHR
( freedom of religion), Turkey expressed concern that Turkish fundamentalists would abuse
freedom of religion.100
II.A.iii. Right to education
37. The GC in the S¸ahin case also considered whether there was a violation of the right to
education. The applicant submitted that the ban imposed by the public authorities on
wearing the Islamic headscarf clearly constituted interference with her right to education,
which had resulted in her being refused access to oncology examinations on 12 March
1998, prevented from enrolling with the university’s administrative department on 20
March 1998 and refused access to a lecture on neurology on 16 April 1998 and a
written examination on public health on 10 June 1998.101 The applicant asked the
Court to ‘‘find that the decision to refuse [her] access to the University when wearing
the Islamic headscarf amounts in the present case to a violation of her right to education,
as guaranteed by Article 2 of Protocol No. 1, read in the light of Articles 8, 9 and 10 of the
Convention’’.102 The first sentence of Article 2 of Protocol No. 1 provides that ‘‘[n]o one
shall be denied the right to education’’. The GC accepted that: ‘‘Although the provision
makes no mention of higher education, there is nothing to suggest that it does not apply
to all levels of education, including higher education’’.103 More specifically, the GC
stated that: ‘‘While the first sentence of Article 2 essentially establishes access to primary
and secondary education, there is no watertight division separating higher education from
other forms of education’’.104 Accordingly ‘‘any institutions of higher education existing
at a given time come within the scope of the first sentence of Article 2 of Protocol
No. 1, since the right of access to such institutions is an inherent part of the right set
out in that provision’’.105
38. As to the content of the right to education and the scope of the obligation it imposes,
the GC noted that in the Belgian linguistic case106 it stated:
The negative formulation indicates, as is confirmed by the ‘preparatory work’. . . , that
the Contracting Parties do not recognise such a right to education as would require
them to establish at their own expense, or to subsidise, education of any particular
type or at any particular level. However, it cannot be concluded from this that the
State has no positive obligation to ensure respect for such a right as is protected
by Article 2 of the Protocol. As a ‘right’ does exist, it is secured, by virtue of
100 See Statement of 27 May 1950, in Council of Europe, Travaux Preparatoires of the European Convention on
Human Rights, Vol III (Martinus Nijhoff, 1976), 80.
101 The GC Judgment, above n. 77, para. 143.
102 The GC Judgment, para. 125. The applicant alleged a violation of the first sentence of Article 2 Protocol No. 1.
103 Ibid., para. 134.
104 Ibid., para. 136.
105 Ibid., para. 141.
106 In the case ‘‘relating to certain aspects of the laws on the use of languages in education in Belgium’’, Judgment
(on the merits) of 23 July 1968, (1968) Series A, No 6; p. 31, para. 3; 1 EHRR 252.
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Chinese JIL (2007)
Article 1 of the Convention, to everyone within the jurisdiction of a Contracting
State.
39. According to the GC: ‘‘Although that Article [Article 2 of Protocol No. 1] does not
impose a duty on the Contracting States to set up institutions of higher education, any
State so doing will be under an obligation to afford an effective right of access to
them’’.107 Effective access to education includes a right for ‘‘everyone’’ to benefit from existing educational facilities at a given time without discrimination. Implicit in the phrase ‘‘No
person shall . . .’’ is the principle of equality of treatment of all citizens in the exercise of their
right to education.108 The GC accepted that ‘‘the regulations on the basis of which the applicant was refused access to various lectures and examinations for wearing the Islamic headscarf
constituted a restriction on her right to education’’.109 The GC, by 16 votes to one, held that
‘‘there has been no violation of the first sentence of Article 2 of Protocol No. 1’’110 for several
reasons. First, the right to education is not absolute, but may be subject to limitations; these
are permitted by implication since the right of access ‘‘by its very nature calls for regulation
by the State’’.111 Secondly, the right to education does not, in principle, exclude recourse to
disciplinary measures, including suspension or expulsion, from an educational institution in
order to ensure compliance with its internal rules.112 Thirdly, the restriction was foreseeable
to those concerned and pursued the legitimate aims of protecting the rights and freedoms of
others and maintaining public order. The obvious purpose of the restriction was to preserve
the secular character of educational institutions.113 Fourthly, it would be unrealistic to
imagine that the applicant, a medical student, was unaware of Istanbul University’s internal
regulations restricting the places where religious dress could be worn or had not been sufficiently informed about the reasons for their introduction.114
40. In Judge Tulkens’s dissenting opinion, she found that the majority in the GC
‘‘deprive[d] the applicant of that right [to education] for reasons which do not appear to
me to be either relevant or sufficient’’.115 Judge Tulkens noted that the applicant did not,
on religious grounds, seek to be excused from certain activities or requested changes to be
made to the university course for which she had enrolled as a student.116 She simply
wished to complete her studies in the conditions that had obtained when she first enrolled
at the University and during the initial years of her university career, when she had been free
to wear the headscarf without any problem.117 She also noted that a limitation would only be
107 Ibid., para. 137.
108 Ibid., para. 152.
109 Ibid., para. 157.
110 Ibid., para. 162.
111 Ibid., para. 154.
112 Ibid., para. 156.
113 Ibid., para. 158.
114 Ibid., para. 160.
115 Tulkens Dissent, above n. 77, para. 15.
116 Ibid.
117 Ibid.
Ssenyonjo, The Islamic Veil 673
consistent with the right to education if there is ‘‘a reasonable relationship of proportionality
between the means employed and the aim pursued’’.118 In this respect she noted that:
before refusing the applicant access to lectures and examinations, the authorities
should have used other means either to encourage her (through mediation, for
example) to remove her headscarf and pursue her studies, or to ensure that public
order was maintained on the university premises if it was genuinely at risk. The
fact of the matter is that no attempt was made to try measures that would have
had a less drastic effect on the applicant’s right to education in the instant case.
My second point is that it is common ground that by making the applicant’s
pursuit of her studies conditional on removing the headscarf and by refusing her
access to the university if she failed to comply with the requirements, the authorities
forced the applicant to leave the country and complete her studies at the University of
Vienna. She was thus left with no alternative.119
41. Lastly, Judge Tulkens observed that the GC did not weigh up the competing interests,
namely, on the one hand, the damage sustained by the applicant—who not only was
deprived of any possibility of completing her studies in Turkey because of her religious convictions but also maintained that it was unlikely that she would be able to return to her
country to practise her profession owing to the difficulties that existed there in obtaining
recognition for foreign diplomas—and, on the other hand, the benefit to be gained by
Turkish society from prohibiting the applicant from wearing the headscarf on the university
premises.120 In these circumstances, Judge Tulkens considered that ‘‘by refusing the applicant access to the lectures and examinations that were part of the course at the Faculty of
Medicine, she was de facto deprived of the right of access to the University and, consequently,
of her right to education’’.121 In her opinion, ‘‘it is ironic that young women should be
deprived of that education on account of the headscarf’’.122 Following the reasoning
above, it is submitted that Judge Tulkens dissent remains very persuasive.
II.A.iv. The S¸ahin case: secularism v. religious freedom
42. The relationship between Islam (including the Islamic veil) and secularism has been a
subject of extensive inquiry.123 This section is not intended to reiterate this debate.
118 Ibid., para. 16.
119 Ibid., para. 17.
120 Ibid.
121 Ibid., para. 15.
122 Ibid., para. 19.
123 See, e.g. C. Laborde, Secular Philosophy and Muslim Headscarves in Schools, 13(3) J Political Philosophy
(2005), 305 –329; P. Weller, ‘Human Rights’, ‘Religion’ and the ‘Secular’: Variant Configurations of Religion(s), State(s) and Society(ies), 1 Religion and Human Rights (2006), 17 –39; I. Abraham, Hijab in an
Age of Fear: Security, Secularism, and Human Rights, 19(2) Australian Religion Studies R (2006), 169 –
188; A.K. Wing and O. Varol, Is Secularism Possible in a Majority-Muslim Country?: The Turkish
Example, 42 Texas ILJ (2006), 1–54; P. Gillespie, Current Issues in Indonesian Islam: Analysing the 2005
Council of Indonesian Ulama Fatwa No. 7 Opposing Pluralism, Liberalism and Secularism, 18(2) J Islamic
Studies (2007), 202 –240.
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Notheless, it is useful to recall that the majority in the EtCHR accepted in the S¸ahin case that
the Islamic headscarf was contrary to the principle of secularism, and considered S¸ahin’s
exclusion from the university as not violating her right to education. However, it should
be noted that Turkey’s general policy of excluding women who wear the Islamic headscarf
from higher education without justification fails to respect the right to freedom of religion
as protected by international human rights treaties.124 A general ban on the headscarf in
education undercuts individual autonomy and choice, a fundamental aspect of women’s
rights that is also violated in states where women are forced to wear the hijab.125 By accepting
the S¸ahin’s exclusion from the University in the name of ‘‘secularism and equality’’, the
majority in the S¸ahin case accepted precisely her exclusion from the type of liberated environment in which the true meaning of these values can take shape and develop.126 As aptly put
by Holly Cartner:
The ECtHR has been a powerful force in extending basic freedoms in Turkey, but it
missed an important opportunity in this case to stand firmly behind principles of
freedom of religion, expression, and non-discrimination. Thankfully, Judge
Tulkens’ analysis presents the beginning of an argument for greater tolerance that
we hope will prevail in the long term.127
43. Secularism and democracy cannot necessarily be threatened by respecting the choice of
an adult woman to wear the hijab or another religious symbol at the university. It appears
that the Court imposes its own ‘‘culturally biased’’ and rather negative interpretations of
the meaning and merits of the hijab and supports ‘‘fundamentalist secularism’’.128 This
assumes that religion is a private issue in the sense that religious manifestations should be
kept within the realm of private areas, like private homes and the places of worship of the
faith communities.129 The Court made some generalizations without relying on any
sources. For example, it claimed that ‘‘the supporters of secularism ... see the Islamic headscarf as a symbol of a political Islam’’.130 It was not clear what the Court meant by ‘‘the supporters of secularism’’. More importantly, does the perception of such supporters makes it
necessary to interfere with an individual’s rights to education and/or freedom of religion,
who sees the wearing of the headscarf in the university as a religious duty and/or a form
of expression linked to religious identity?
124 See, e.g. ICCPR, Article 18; HRW, Memorandum to the Turkish Government on Human Rights Watch’s
Concerns with Regard to Academic Freedom in Higher Education, and Access to Higher Education for
Women who Wear the Headscarf, Human Rights Watch Briefing Paper 29 June 2004, 23 –24
(www.hrw.org/backgrounder/eca/turkey/2004/headscarf_memo.pdf ).
125 Ibid.
126 Tulkens Dissent, above n. 77, para. 19.
127 HRW, above n. 124.
128 Plesner, above n. 17, 9 and 16.
129 Ibid.
130 The GC Judgment, above n. 15, para. 35.
Ssenyonjo, The Islamic Veil 675
44. The Court has thus contributed to stigmatizing the religious practice of women
wearing the hijab as incompatible with the principle of secularism, like it stigmatized the
same practice as ‘‘intolerant’’ in the Dahlab case. Indeed, the subject matter of the S¸ahin
case may be said to have not been merely the wearing of the Islamic headscarf by the applicant at Istanbul University, but the broader question of how to incorporate Islamic values
into Western democracies without making concessions to its basic principles.131 The
Court gave priority to the danger caused by Islam in Turkey, in general, over the particular
facts of S¸ahin’s application.132 On the basis of the foregoing case-law of the ECtHR, it may
be stated that ‘‘the Court is trying, increasingly, to impose its own conception of secularism
at an acknowledged cost to religious freedom’’133 as well as the right to education of female
Muslim students who wish to wear the hijab at Universities in Turkey.
45. Finally, it is worthy noting that although the relevant legislation in Turkey applies to
both sexes, male and female, it disproportionately affects women who wish to wear the veil
since, as noted above, the Islamic religion does not oblige men to veil. Despite the fact that
the ban on beards in Turkey universities generally affects men, unlike the hijab which is considered compulsory for Muslim women, growing the beard for men is regarded by most
Islamic scholars as ‘‘commendable but not obligatory’’, and, accordingly, shaving it would
be classified as Makruh (reprehensible) rather than Haram ( prohibited).134
II.B. The jilbab and the right to education: the UK House of Lords
46. The UK had a population of approximately 59.6 million in mid-2003, 2.7 per cent of
which were Muslims (about 1.6 million).135 Muslims in the UK are (religious and/or
ethnic) minorities and most are immigrants mainly from Pakistan and Bangladesh.136
The UK has not laid down national rules on school uniforms, but permits schools to
have policies on uniforms ‘‘sensitive to the needs of different cultures, races and religions’’.137
In March 2006, the House of Lords found in the case of Begum that a ban on a full length
131 See K. Altiparmak and O. Karahanogullari, After S¸ahin: The Debate on Headscarves is not Over, Leyla S¸ahin
v. Turkey, the GC Judgment of 10 November 2005, Application No. 44774/98, 2 European Constitutional LR
(2006), 268 –292.
132 Ibid., at 279. See also GC Judgment, above n. 15, para. 115; Chamber Judgment, above n. 55, para. 99.
133 See S. Langlaude, Indoctrination, Secularism, Religious Libertyy, and the ECHR, 56(1) ICLQ (2006), 929 –
944, at 944. See also Karaduman v. Turkey, Application 16278/90, (1993) 74 DR 93; and Bulut v. Turkey,
Application 18783/91.
134 See S. Yusuf Al-Qaradawi, Islamic Guidance on Growing Beard, (22 March 2002), (www.islamonline.net/
fatwa/english/FatwaDisplay.asp?hFatwaID¼65268). For a different view, see Islam Question and Answer,
Ruling on Shaving the Beard, (www.islam-qa.com/index.php?ref¼1189&ln¼eng&txt¼beard) and Is
Keeping Beard that Important? (www.allaahuakbar.net/important_issues_of_islaam/beard.htm).
135 See United Kingdom in International Religious Freedom Report 2006 (www.state.gov/g/drl/rls/irf/2006/
71416.htm).
136 EUMC, above n. 5, at 22. See also UK 2001 National Census, Religion in Britain (www.statistics.gov.uk/
focuson/religion/). Approximately 75 per cent of the British Muslims have a primarily South-Asian base (43
per cent Pakistanis, 16 per cent Bangladeshi, 8 per cent Indians and 6 per cent from other Asian backgrounds).
Around 12 per cent are white (5 per cent with UK heritage) and about 8 per cent have an African Black origin.
137 See DfES, School Uniform Guidance (June 2004) (www.governornet.co.uk/publishArticle.cfm?topicAreaId¼
9&contentId¼437&pageStart¼61&sortOrder¼c.publishDAte).
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Islamic dress by a British secondary school did not breach the Human Rights Act 1998
(HRA).138
II.B.i. The Begum case: factual background
47. The brief background to this case was as follows: Shabina Begum was a Muslim, born
in the UK to parents who came from Bangladesh. In September 2000, at the age of
nearly 12, she enrolled at the Denbigh High School in Luton, a multi-cultural, multifaith, secular secondary school for children ( from 11 to 16 years of age) of both sexes.
About 80% of the pupils at this school were Muslim and most of them were of Bangladeshi
or Pakistani heritage, but a number of other religions and ethnic groups were also represented. For her first two years at the school, Shabina wore the shalwar kameeze
without complaint.139 At some stage, however, she decided that it did not accord with
her religious beliefs, because ‘‘she had a genuine belief that the tenets of Islam required
her, in her approach to womanhood, to wear a jilbab [a long coat-like garment] when in
public and that the school shalwar kameeze did not suffice’’.140 The School authorities
demanded the respondent to wear the correct school uniform before attending
school.141 Shabina (a school girl aged nearly 14) contended that the decision of the
head teacher and school governors not to admit her to the school while wearing
the jilbab (the only garment which met her religious requirements because it concealed
the contours of the female body) breached two of her rights under the ECHR: the
right to ‘‘manifest [her] religion . . . in . . . practice and observance’’ (Article 9) 142 and
the right not to ‘‘be denied the right to education’’ (Article 2 of the Protocol No. 1).
Bennett J., ruling on Shabina’s application for judicial review at first instance, dismissed
the claim143 but the Court of Appeal made a declaration that her rights under Article 9
had been infringed.144 The school appealed to the House of Lords. Owing to space constraints, the analysis that follows is limited to some key elements of reasoning in the
House of Lords judgment.
138 Begum case [2006] UKHL 15. The HRA is available at www.opsi.gov.uk/ACTS/acts1998/19980042.htm.
139 Ibid., para. 6. ‘‘The school offered three uniform options. One of these was the shalwar kameeze: a combination
of the kameeze, a sleeveless smock-like dress with a square neckline, revealing the wearer’s collar and tie, with the
shalwar, loose trousers, tapering at the ankles. A long-sleeved white shirt is worn beneath the kameeze and, save
in hot weather, a uniform long-sleeved school jersey is worn on top’. Two mosques in Luton, the London
Central Mosque Trust and the Islamic Cultural Centre advised that this uniform did not offend the Islamic
dress code in the view of the vast majority of Muslim scholars’’’ ( para. 13).
140 Ibid., para. 80, per Lord Scott.
141 Ibid.
142 Article 9 of the ECHR provides: ‘‘(1) 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 worship, teaching, practice and observance. (2)
Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by
law and are necessary in a democratic society in the interests of public safety, for the protection of public
order, health or morals, or for the protection of the rights and freedoms of others’’.
143 [2004] EWHC 1389 (Admin); [2004] ELR 374.
144 [2005] 1 WLR 3372 (Brooke, Mummery and Scott Baker LJJ).
Ssenyonjo, The Islamic Veil 677
II.B.ii. Freedom of religion
48. The Court accepted, obviously rightly, that ‘‘the respondent sincerely held the religious
belief which she professed to hold. . . . Article 9(1) is engaged or applicable’’.145 It went on to
consider whether the respondent’s freedom to manifest her belief by her dress was subject to
limitation (or interference) within the meaning of Article 9(2) and, if so, whether such limitation or interference was justified under that provision—prescribed by law, necessary in a
democratic society for a legitimate purpose and proportionate in scope and effect. Their
Lordships’ reasons were two-fold: (i) the school’s refusal to allow Shabina Begum to wear
a jilbab at school did not interfere with her Article 9 right to manifest her religion (according
to the majority) and, even if it did, (ii) the school’s decision was objectively justified. While
there was consensus on the second finding ( justification), there were differences in the
opinion about the first one (whether there was interference). The majority in the House
of Lords found that ‘‘there was no interference with the respondent’s right to manifest her
belief in practice or observance’’,146 because she had ‘‘chosen to attend this school
knowing full well what the school uniform was. It was she who had changed her mind
about what her religion required of her, rather than the school which had changed its
policy’’.147 According to Lord Hoffmann:
I accept that wearing a jilbab to a mixed school was, for her, a manifestation of her
religion. The fact that most other Muslims might not have thought it necessary is
irrelevant. But her right was not in my opinion infringed because there was
nothing to stop her from going to a school where her religion did not require a
jilbab or where she was allowed to wear one. Article 9 does not require that one
should be allowed to manifest one’s religion at any time and place of one’s own
choosing.148
49. The above reasoning suggests that there was no interference with Shabina’s right to manifest her religious beliefs by a jilbab because of the existence of other schools where she could
wear a jilbab. This does not appear to be convincing because the existence of other schools
can only serve to justify the interference as opposed to the absence of the interference. The
reasoning also indicates that the majority were reluctant to protect the rights of more marginalized individuals within the minority religious groups. As Lord Hofffman stated, ‘‘people
[minorities like Shabina] sometimes have to suffer some inconvenience for their beliefs’’
( para. 50). Lord Nicholls and Lady Hale of Richmond, the only female member of the
Appellate Committee, took a different opinion. Lord Nicholls noted:
I think this [the view that her right to manifest her religion by a jilbab was not
infringed] may over-estimate the ease with which Shabina could move to another,
more suitable school and under-estimate the disruption this would be likely to
145 Ibid., Lord Bingham, para. 21.
146 Ibid., Lord Bingham, para. 25; Lord Hoffmann, para. 50 and Lord Scott of Foscote, para. 72.
147 Ibid., para. 92.
148 Ibid., para. 50.
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cause to her education. I would prefer that in this type of case the school is called
upon to explain and justify its decision, as did the Denbigh High School in the
present case.149
50. Lady Hale of Richmond also agreed with Lord Nicholls that ‘‘there was an interference
with Shabina Begum’s right to manifest her religion’’ because:150
The reality is that the choice of secondary school is usually made by parents or guardians rather than by the child herself. The child is on the brink of, but has not yet
reached, adolescence. She may have views but they are unlikely to be decisive. More
importantly, she has not yet reached the critical stage in her development where this
particular choice may matter to her . . . It cannot be assumed, as it can with adults,
that these choices are the product of a fully developed individual autonomy. But it
may still count as an interference.151
51. The Law Lords found the school’s refusal to allow Shabina Begum to wear a jilbab at
school justified for a number of reasons, such as the school’s right to adopt a policy on
school uniforms for reasons such as ‘‘smoothing over ethnic, religious and social divisions’’,152
the fact that headscarves were allowed, so ‘‘the school had taken immense pains to devise a
uniform policy which respected Muslim beliefs but did so in an inclusive, unthreatening
and uncompetitive way’’,153 that the existing policy largely conformed with, and acceptable
to ‘‘mainstream Muslim opinion’’,154 the fact that girls had ‘‘subsequently expressed their
concern that if the jilbab were to be allowed they would face pressure to adopt it even
though they do not wish to do so’’155 and the school’s wish to avoid clothes which were perceived by some Muslims (rightly or wrongly) as signifying adherence to what was described as
an ‘‘extremist version of the Muslim religion’’.156 The school relied on a statement made by the
Muslim Council of Britain on the ‘‘Dress code for women in Islam’’ which stated that in Islam
‘‘there was no recommended style; modesty must be observed at all times; trousers with long
tops or shirts for school wear were ‘absolutely fine’’’.157 As put by Lord Bingham:
Each school has to decide what uniform, if any, will best serve its wider educational
purposes. The school did not reject the respondent’s request out of hand: it took
advice, and was told that its existing policy conformed with the requirements of
mainstream Muslim opinion. It would in my opinion be irresponsible of any
court, lacking the experience, background and detailed knowledge of the head
149 Ibid., Lord Nicholls, para. 41.
150 Ibid., Baroness Hale, para 93.
151 Ibid., paras. 92 –93.
152 Ibid., para. 97.
153 Ibid., Lord Bingham, para 34.
154 Ibid.
155 Ibid., Baroness Hale, para. 98.
156 Ibid., Lord Hoffmann, para. 65.
157 Ibid., para. 15.
Ssenyonjo, The Islamic Veil 679
teacher, staff and governors, to overrule their judgment on a matter as sensitive as
this. The power of decision has been given to them for the compelling reason that
they are best placed to exercise it, and I see no reason to disturb their decision. 158
52. In addition, it was noted that there were three schools in the area ‘‘whose rules would
permit her [the respondent] to wear a jilbab’’.159 Furthermore, it was observed that
Shabina ‘‘had chosen to attend this school knowing full well what the school uniform
was’’.160 Finally, Lord Scott observed: ‘‘The notion that the shalwar kameeze school
uniform would not accord with essential requirements of Islamic modesty for teenage
girls seems to me an extraordinary one’’ ( para. 83).
53. It is vital to consider whether the reasons stated above made it ‘‘necessary’’ to interfere
with the applicant’s freedom to manifest her religion by a jilbab at school. In particular,
several questions can be raised with respect to some aspects of the Court’s reasoning.
First, does the wearing of a jilbab (which was considered to be ‘‘extraordinary’’) signify
adherence to an ‘‘extremist version’’ of the Muslim religion so that it is necessary to limit
it in schools? Is it for the Courts to determine the ordinary and extraordinary requirements
of a particular religion in a given context? Furthermore, is it ‘‘irresponsible’’ of any Court to
overrule the judgment of school authorities on a matter involving dress in schools according
to one’s religious beliefs? It is not intended to address comprehensively all these issues here
but some general remarks are made briefly below.
54. While it is accepted that freedom of religion ‘‘is one of the foundations of a democratic
society’’,161 it can hardly be disputed that: ‘‘In democratic societies, in which several religions
coexist within one and the same population, it may be necessary to place restrictions on
freedom to manifest one’s religion or belief in order to reconcile the interests of the
various groups and ensure that everyone’s beliefs are respected’’.162 The limitation clauses
in Articles 8 –11 of the ECHR demand that interferences must be ‘‘necessary in a democratic
society’’. The term ‘‘necessary’’ has been found to connote a high burden to be discharged by
a State (in this case, the school). Necessity is ‘‘not synonymous with ‘indispensable’ neither
has it the flexibility of such expressions as ‘admissible’, ‘ordinary’, ‘useful’, ‘reasonable’ or
‘desirable’’’.163 A measure does not become ‘‘necessary’’ simply because it has the support
or approval of a majority of the population—as is appropriate with a human rights instrument, the court must also consider the rights of minorities.164 The adjective ‘‘necessary’’
requires that any interference must on the particular facts of the case be ‘‘proportionate to
the legitimate aim pursued’’ and be designed to meet a ‘‘pressing social need’’ and the
158 Ibid., paras. 33 – 34.
159 Ibid., Lord Scott, para. 89 and Lord Bingham, para. 25.
160 Ibid., Baroness Hale, para. 92.
161 ECtHR, Kokkinakis v. Greece (1993) 17 EHRR 397, para. 31.
162 The GC Judgment, above n. 15, para 106; Kalac v. Turkey (1997) EHRR 552.
163 Handyside v. the United Kingdom (1976) 1 EHRR 737, at 754; Silver and Others v. the United Kingdom,
Judgment of 25 March 1983, (1983) 5 EHRR 347, para. 97.
164 S¸ahin, the GC Judgment, above n. 15, para. 108.
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reason(s) given for the interference must be ‘‘relevant and sufficient’’.165 While the ‘‘relevant
reasons’’ test, which is related to the legitimate aim standard, can readily be met, in contrast,
the ‘‘sufficient reasons’’ test requires a more careful analysis of factors including the nature,
severity and effects of obstructing measures in tandem with any expected harm caused to the
protected rights.166
55. In the Begum case, there was no sufficient evidence to justify the ‘‘perception’’ that
wearing a jilbab signified alleged adherence to an ‘‘extremist version’’ (a term that was not
defined) of the Muslim religion or to link extremism to Shabina Begum’s conduct.
Indeed, there was no evidence to show that Shabina was an ‘‘extremist’’ or supported any
extremist group. As noted above, under the ECHR, the ECtHR stresses that the margin
of appreciation, sometimes called the margin of discretion or the discretionary area of judgment, is not intended to abrogate the duty of the Court—the margin of appreciation goes
‘‘hand in hand with . . . European supervision’’.167 However, the application of a high
degree of deference to the school authorities (the head teacher, staff and governors), as the
House of Lords did in this case, effectively lessened the court’s role to determine whether
the limitation in question was ‘‘necessary’’ under Article 9. Indeed, according to the
majority, there was no interference in the first place. To state that it would be ‘‘irresponsible’’
for the court to overrule the head teacher, staff and governors in a case of a jilbab at school
effectively undermined the court’s ‘‘supervision’’ in terms of intensity of scrutiny with which
the margin of appreciation is supposed to work ‘‘hand in hand’’. It also suggests that experienced school authorities can make no errors of judgment, which does not appear to be always
the case.168 Deferring to the school authorities granted to the school an almost unlimited
‘‘margin of discretion’’ thereby enabling the court to avoid the ‘‘difficult’’ jilbab question
and its failure to recognize the rights of the most marginalized individuals within minority
groups—in this case being the rights of a female Muslim pupil wearing a jilbab at school. As
noted in para. 49 above, Lord Hofffman clearly stated that ‘‘people [minorities like Shabina]
sometimes have to suffer some inconvenience for their beliefs’’. Implicit in this assertion is
the question: why did she choose to wear ‘‘extraordinary’’ religious clothing linked to an
‘‘extremist version of the Muslim religion’’?
II.B.iii. Right to education
56. The court also considered the claim of denial of the right to education guaranteed by
Article 2, Protocol No. 1. It was noted that Article 2 ‘‘confers no right to go to any particular
school. It is infringed only if the claimant is unable to obtain education from the system as a
165 See, inter alia, Handyside, above n. 163, paras. 48 –50; Silver and Others, above n. 163, para. 97.
166 See Y. Arai, The System of Restrictions, in: Pieter Van Dijk et al. (eds), Theory and Practice of the European
Convention on Human Rights (Intersentia, 4th edn. 2006), 333 –350, at 341.
167 S¸ahin, the GC Judgment, above n. 15, para. 110; The Moscow Branch of the Salvation Army v. Russia, Application 72881/01 (5 October 2006), Chamber, First Session), para. 76; See also George Letsas, Two Concepts of
the Margin of Appreciation, 26(4) Oxford JLS (2006),705 –732.
168 G. Davies, The House of Lords and Religious Clothing in Begum v. Headteacher and Governors of Denbigh
High School, 13(3) European Public Law (2007) XXX, at XXX observes that ‘‘[e]ven excellent teachers can
make errors of judgment’’.
Ssenyonjo, The Islamic Veil 681
whole’’.169 It was observed that in the present case, she could choose to attend a school where
she could wear her jilbab, and there was nothing to suggest that Shabina could not have
found a suitable school if she had notified her requirements in good time to the local education authority.170 This approach does not consider another dilemma in that if girls are
moved from State to private, religious schools, they leave an environment where they can
experience tolerance, friendship among all peoples, ethnic, national and religious groups,
persons of indigenous origin, diversity of culture, ethnicity and religion. Lord Scott added
that ‘‘if the conclusion that the school was entitled to have a school uniform policy that
did not allow Shabina to wear a jilbab is right, as in my opinion it is, it must follow that
the school did not by requiring her to wear the school uniform commit any breach of her
Convention right to education’’.171
57. The decision in the Begum case would suggest that ‘‘when public institutions take
decisions in a thoughtful, sensitive and participatory manner that seek to balance the relevant
considerations, their decisions will not be interfered with lightly by the courts on human
rights grounds’’.172 While in this particular case, the decision could be justified based on
the fact that there were other available schools in the area whose rules permitted the
wearing of the jilbab, it is questionable whether courts should base similar cases on the
ground of ‘‘main stream Muslim opinion’’. The problem with this approach is that it
does not take full account of the rights of the most marginalized individuals within religious
minorities who are subordinated to ‘‘main stream opinions’’ contrary to international human
rights law.173 This appears to be contrary to the established principle of the UN Human
Rights Committee (HRC) requiring that the ‘‘terms ‘belief’ and ‘religion’ are to be
broadly construed’’ to include newly established beliefs, or religious minorities.174 As
pointed out by the EctHR, ‘‘the Convention should so far as possible be interpreted in
harmony with other rules of international law of which it forms part’’.175 In fact, Article
15(1) of the ECHR provides that measures taken by a State derogating from its Convention
obligations must not be ‘‘inconsistent with its other obligations under international law’’,
whereas Article 53 of the ECHR excludes any reference to the Convention which limits
or derogates from any of the human rights which may be ensured under any other agreement
to which a State is a party. Thus, at a domestic level, courts should interpret the Convention
in the light of other international human rights treaties to which a State is party. Given that
169 S¸ahin, the GC Judgment, above n. 15, para. 69. See also Abdul Hakim Ali v. Head Teacher and Governors of
Lord Grey School [2006] UKHL 14.
170 Begum case, above n. 138, paras. 50 and 69.
171 Ibid., para. 90.
172 McGoldrick, above n. 27, 204.
173 See ICCPR, Article 27: ‘‘In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to
enjoy their own culture, to profess and practise their own religion, or to use their own language’’.
174 HRC, General Comment 22, above n. 24, para. 2.
175 Al-Adsani v. United Kingdom, App. 35763/97, Judgment of 21 November 2001, (2002) 34 EHRR 273. See
also L. Wildhaber, The European Convention on Human Rights and International Law, 56(2) ICLQ (2007),
217 –231.
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Chinese JIL (2007)
the UK is a State party to the ICCPR, it is relevant to take into account the ICCPR obligations when interpreting and applying the HRA/ECHR.
II.C. Pupil/student hijab ban in primary and secondary schools:
the French example
58. In 2006, France had a population of approximately 62.9 million, the vast majority of the
population were nominally Roman Catholic.176 Muslims constituted the second largest religious group—an estimated five to six million individuals of Muslim origin (eight to ten per
cent of the population), but estimates of how many of these were practicing Muslims varied
widely.177 In 1989, citing the principle of laı¨cite´ (secularism and religious neutrality),178 a
school in France banned the wearing of headscarves by female students and expelled them
for refusing to abide by this rule. The Minister for National Education requested an advisory
opinion on the legality of the school’s conduct from the Council of State.179 The Council of
State advised, that:
the wearing, by students, of tokens expressing their religious affiliation is not, by itself
incompatible with the principle of laı¨cite´. However, this liberty would not permit
pupils to flaunt, in a conspicuous fashion, symbols of religious affiliation which,
by their very nature, by the conditions under which they are worn . . . would constitute an act of pressure proselytism or propaganda. . .180
59. The decision then enumerated cases in which this would be forbidden, including circumstances in which such expression would infringe upon the dignity or the liberty of the pupils
or others. Later, rulings by the Council of State, which struck down complete bans by schools
on wearing of headscarves, narrowed the broad language of the decision by way of interpretation and clarified that a ban would be justified only in extreme cases.181 As noted by the
Board of Experts of the International Religious Liberty Association (IRLA):
Between 1989 and 2004, the French Conseil d’Etat determined, in approximately
fifty decisions and judgments, that Muslim school girls had a right to wear headscarves in state schools provided that they did not display the headscarves in a proselytizing manner and that they did not disrupt schools. The Conseil d’Etat made
176 See France in International Religious Freedom Report 2006 (www.state.gov/g/drl/rls/irf/2006/71380.htm).
177 Ibid.
178 It is thought that no English word captures the exact meaning of ‘‘li¨cite´’’, but it is similar to secularism, although
the two are not exact synonyms. It is best described as a belief that government and political issues should be kept
separate from religious organisations and religious issues (as long as the latter do not have notable social consequences). For a discussion, see generally Se`ve, Rene´, La laicite´, Dalloz, Paris, (2005).
179 Opinion of the Conseil d’etat No. 346.893, session of 27 November 1989 (www.conseil-etat.fr/ce/rappor/
index_ra_cg03_01.shtml); Abd Allah A. Na’im ‘Human Rights and Islamic Identity in France and Uzbekistan:
Mediation of the Local and the Global’ 22(4) Human Rights Quarterly (2000), 906 –941, at 920.
180 Ibid., 5.
181 See Decision of the Conseil d’etat No. 130394, 2 November 1992, Kherouaa, Public Law [1993], 198;
S. Poulter, Muslim Headscarves in School: Contrasting Legal Approaches in England and France, 17(1)
Oxford JLS (1997), 43.
Ssenyonjo, The Islamic Veil 683
these judgments based upon its interpretation of the French Constitution, international human rights law, and the French concept of laı¨cite´.182
60. Thus, the French Conseil d’Etat can be regarded as having generally supported ‘‘open’’
neutrality (i.e. permitting manifestation of all religions in the public sphere except only in
limited circumstances) between 1989 and 2004. However, in July 2003, President Jacques
Chirac of France formed the Stasi Commission (named after its chair, Mr Bernard Stasi) to
conduct ‘‘an analysis of the application of the principle of laı¨cite´ in the Republic’’.183 The
Commission released its report in December 2003 and recommended, among others, a ban
on ‘‘clothing and signs manifesting religious or political affiliation’’ from public schools.184
One of the commission’s justifications for its recommendation was its perception that
Muslim girls were being coerced by ‘‘families and communities . . . to wear headscarves
against their will, which in turn aggravated religious polarization and sexual discrimination’’.185
Despite this broad allegation, the commission did not provide any rigorous evidence and did
not conduct any social scientific research to support this claim. The commission simply concluded that ‘‘the question . . . is no longer liberty of conscience, but the maintenance of public
order’’.186 This view was based on the premise that all Muslims girls who wear headscarves are
oppressed and wear the headscarves involuntarily because of social pressure by their family or
even harassment by their peer group. It did not take into account the fact that some Muslim
girls might wear the headscarf out of choice, in adherence to Islamic religious obligations/convictions, or as an assertion of Muslim identity or as a culturally defined display of modesty or
that some women and girls who choose to veil understand women’s human rights.
61. Following this report, on 10 February 2004, the French Parliament, without providing
any further evidence to support the commission claims, enacted the law on secularity and conspicuous religious symbols in schools (the Act of 15 March 2004) which banned students from
wearing ‘‘conspicuous’’ or ‘‘ostensible’’ religious symbols in French public (i.e. governmentoperated) primary and secondary schools.187 The law provided that ‘‘in State primary and
secondary schools, the wearing of signs or dress by which pupils overtly manifest a religious
affiliation is prohibited’’.188 The ban on ‘‘overtly’’ religious symbols was enacted on the
basis of the recommendation of the Stasi Commission to ‘‘safeguard public order’’.189 The
182 IRLA, above n. 1, Background para. 9.
183 Decree No. 2003-607 of July 3, 2003.
184 T. Jeremy Gunn, Religious Freedom and Laı¨cite´: a Comparision of the United States and France, 2 Brigham
Young University LR (2004), 419 –506, 462 (www.lawreview.byu.edu/archives/2004/5GUN-FIN2.pdf ).
185 Ibid., 467.
186 Ibid.
187 The full title of the law is Loi no. 2004-228 du 15 mars 2004 encadrant, en application du principe de laı¨cite´, le
port de signes ou de tenues manifestant une appartenance religieuse dans les e´coles, colle`ges et lyce´es publics.
The bill was passed by France’s National Assembly by a 494 to 36 vote, followed on March 3 by a Senate vote of
276 to 20 vote. It was signed into law by President Jacques Chirac on 15 March 2004 (thus, the technical name
is law 2004-228 of 15 March 2004) and came into effect on 2 September 2004. See Journal Officiel de la
Re´publique Franc¸aise [J.O.], 17 March 2004, at 5190.
188 Ibid.
189 Gunn, above n. 184, 466.
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Chinese JIL (2007)
impact of a ban on visible religious symbols, even though phrased in neutral terms (applies to
all denominations), has fallen disproportionately on Muslim girls due to a high Muslim population in France,190 for whom the wearing of the hijab is considered a religious obligation.191
62. The law appears to be more firmly rooted in French fears of an increasingly ‘‘fundamentalist form of Islam’’ being practised by a younger generation of French Muslims.192 It is,
however, unclear whether Muslim girls wearing headscarves in public ( primary and secondary)
schools constituted a threat to ‘‘public order’’ in France. The Stasi report does present evidence
to show how girls wearing religious symbols in public schools threatened public order. Some
Muslim girls who refused to remove headscarves were expelled from schools raising the question whether this is intolerance or necessity.193 Whether girls wear the headscarf to school by
choice (deep personal religious conviction) or out of compulsion, the effect is the same if they
refuse to remove it—denial of access to public education for voluntarily manifesting religious
beliefs. For example, in October 2004, two girls aged 12 and 13 in Mulhouse in eastern France,
were suspended from school for wearing traditional Muslim headscarves to class.194 In the
school year 2004–2005, of the 143 pupils who refused to conform to the law, 47 pupils
were suspended by the decision of the disciplinary board and 96 were transferred to private
education.195 In practice, the law fails to respect parents’ religious and philosophical foundations in the education of their children.196 State officials should not simply assume,
without clear evidence, that parental teaching and influence are necessarily unduly coercive.197
The effect of the application of this law to Muslim girls in primary schools, in a State where
Muslims are a minority,198 is to pursue an aim of indoctrination or assimilation. This
190 There are about 6 million Muslims in France—about 10 per cent of the population—the largest Muslim population in Western Europe. See European Muslim Population (in 2006), at www.islamicpopulation.com/
europe_islam.html; Department of State, 107th Cong., Annual Report on International Religious Freedom
2002, at 365 (Joint Comm. Print 2002).
191 See More than 100 Girls Defy France’s Headscarf Ban, CBS News, 8 September 2004; E.C. Jones, Muslim
Girls Unveil their Fears, BBC News, 28 March 2005; C. Killian, The Other Side of the Veil-North African
Muslim Women in France Respond to the Headscarf Affair, 17(4) Gender and Society (2003), 567 – 590.
192 See French Girls Expelled Over Veils, BBC News, 20 October 2004, www.news.bbc.co.uk/1/hi/world/
europe/3761490.stm).
193 Amnesty International, Annual Report 2005: France (web.amnesty.org/report2005/fra-summary-eng) noted:
‘‘According to the French authorities, of more than 600 girls who returned to school in September [2004]
wearing headscarves, a small number were expelled out of the 100 who refused to remove them and who
were invited to talks with school officials’’. See also Reuven (Ruvi) Ziegler, The French ‘‘Headscarves Ban’’:
Intolerance or Necessity?, 40 John Marshall LR (2006), 235 –266.
194 France: First Students Expelled over Head Scarves, New York Times, 20 October 2004, A14; First Girls
Expelled over French Headscarf Ban, CBS News, 20 October 2004.
195 EUMC, above n. 5, 41. See also Der Standard, 28 March 2005.
196 Article 2 of Protocol No. 1 ECHR, 213 U.N.T.S. 262 states: ‘‘No person shall be denied the right to education.
In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect
the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions’’.
197 IRLA, above n. 1, Recommendation 3.
198 ICCPR, Article 27; HRC, Concluding Observations: France, CCPR/C/79/Add.80 (4 August 1997), para. 24.
‘‘. . .The Committee is, however, unable to agree that France is a country in which there are no ethnic, religious
or linguistic minorities. . .’’.
Ssenyonjo, The Islamic Veil 685
might be regarded as either not respecting parents’ religious and philosophical convictions
contrary to the established human rights jurisprudence199 or not respecting the right of the
child to freedom of religion consistent with ‘‘the evolving capacities of the child’’ contrary
to France’s international human rights obligations as a State party, for example, to the Convention on the Rights of the Child (CRC).200 The law has left some Muslim families no
choice but to remove girls from the state educational system or to abandon their religious convictions in the education of their children. In effect, therefore, the law is likely to lead to the
violation of antidiscrimination provisions of international human rights law as well as the
right to equal educational opportunity.201 Therefore, some UN treaty monitoring bodies
such as the Committee on the Elimination of Racial Discrimination (CERD Committee)
recommended that France:
should continue to monitor the implementation of the Act of 15 March 2004
closely, to ensure that it has no discriminatory effects and that the procedures followed in its implementation always place emphasis on dialogue, to prevent it from
denying any pupil the right to education and to ensure that everyone can always exercise that right.202
63. Similarly, the Committee on the Rights of the Child noted that the Act of 15 March
2004 ‘‘may be counterproductive, by neglecting the principle of the best interests of the
child and the right of the child to access to education, and not achieve the expected
results’’.203 It recommended, in 2004, that France, when evaluating the effects of the Act
of 15 March 2004, uses the enjoyment of children’s rights, as enshrined in the CRC, as a
‘‘crucial criteria’’ in the evaluation process and also considers alternative means, including
mediation, of ensuring secular character of public schools, while guaranteeing that individual
rights are not infringed upon and that children are not excluded or marginalized from the
school system and other settings as a result of such legislation.204 It stressed that the
‘‘dress code of schools may be better addressed within the public schools themselves,
encouraging participation of children’’.205 The Committee further recommended that
199 ECtHR, Valsamis v. Greece, (1996) 24 EHRR 294; 1996-VI 2312, at 2324.
200 Article 14 of the Convention provides: ‘‘1. States Parties shall respect the right of the child to freedom of
thought, conscience and religion. 2. States Parties shall respect the rights and duties of the parents and,
when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a
manner consistent with the evolving capacities of the child. 3. Freedom to manifest one’s religion or beliefs
may be subject only to such limitations as are prescribed by law and are necessary to protect public safety,
order, health or morals, or the fundamental rights and freedoms of others’’.
201 HRW, France: Headscarf Ban Violates Religious Freedom, HRW, New York, 27 February 2004
(www.hrw.org/english/docs/2004/02/26/france7666_txt.htm).
202 CERD Committee, Concluding Observations: France, CERD/C/FRA/CO/16 (18 April 2005), para. 18.
France ratified the Convention on the Elimination of All Forms of Racial Discrimination, UN Doc A/6014
(1966), in 1971.
203 CRC Committee, Concluding Observations: France, CRC/C/15/Add.240 (30 June 2004), para. 25. France
ratified the CRC in 1990.
204 Ibid., para. 26.
205 Ibid.
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Chinese JIL (2007)
France continues to ‘‘closely monitor the situation of girls being expelled from schools as a
result of the new legislation and ensures they enjoy the right of access to education’’.206
While these recommendations are useful, they are limited to ‘‘monitoring’’ the situation
of girls and do not extend to consider a review of the relevant legislation. Accordingly,
they do not address the cause but attempt to focus on the effect and thereby avoid addressing
the real problem.
II.D. Hijab ban in a private school: the Israel example
64. The Islamic headscarf in schools controversy in Israel was considered in the case of Mona
Jabarin v. the Minister of Education.207 In this case, Mona Jabarin, a Muslim girl, wished to
attend a school of another religious minority (Christian) in a state with a Jewish majority.
She was refused admittance to a Christian school when she insisted on wearing an Islamic
headscarf. However, she could be admitted if she agreed to abide by the school’s dress
codes. She petitioned the Supreme Court against the school’s decision. It was argued that
the school’s dress code, to which the student must conform, was necessary to maintaining
an educational atmosphere needed to achieve the school’s goals. The court rejected the petition. The court based its decision to dismiss the petition on the fact that the school in question was a private denominational school (although the denominational school was publicly
funded), and not a State school. The court preferred the autonomy of the religious (Christian)
community, to the religious freedom of the individual (Muslim) child. One of the three
judges on the panel commented that he would have reached the same conclusion in a case
of a State school. However, it is questionable whether it should not be insisted that all religious communities, as non-State actors, respect human rights (including the right to education and respect for parents’ religious convictions in the education of children), at least
in all their public institutions that are not of inherently religious character.
65. As noted above, the right to equality and freedom from discrimination extends to the
educational obligations of States.208 The obligation to ‘‘protect’’ the right to education
requires States parties to take measures that prevent third parties (such as private schools)
from interfering with the enjoyment of the right to education.209 It follows that States
have an obligation to monitor and regulate the conduct of non-State actors to ensure that
they do not violate the equal right of men and women to enjoy human rights including
rights to education and freedom of religion.210 This obligation applies, for example, in
206 Ibid.
207 HCJ 4298/93, PD 48 (5) 199 [hereinafter Mona case]. For the religious demography in Israel see Israel and the
Occupied Territories in: International Religious Freedom Report 2006 (www.state.gov/g/drl/rls/irf/2006/
71423.htm). In 2006, Israel’s population was approximately seven million, of which 5.6 million were Jews.
Slightly less than 20 per cent of the population was non-Jewish and the vast majority of them were ethnically
Arab. Of this number, Muslims constituted approximately 12 per cent, Christians 3.5 per cent, Druze 1.5 per
cent and adherents of other religions approximately 0.5 per cent.
208 ICCPR, Articles 2(1), 3 and 26.
209 CESCR, General Comment 13, above n. 33, para. 47.
210 See CESCR, General Comment 16, Article 3: The Equal Right of Men and Women to the Enjoyment of all
Economic, Social and Cultural Rights (34th session, 2005), UN Doc E/C.12/2005/3 (2005), para. 20.
Ssenyonjo, The Islamic Veil 687
cases where public services such as education have been partially or fully privatized.211 For
example, the HRC has expressed the view that the ‘‘right to equality before the laws and
freedom from discrimination, protected by article 26 [ICCPR],212 requires States to act
against discrimination by public and private agencies in all fields . . .such as. . . education’’.213 As an example, in a case involving religious schooling in Canada, where
public funding was provided to Roman Catholic schools and not inter alia to Jewish
schools, the HRC stated that, ‘‘the Covenant does not oblige States Parties to fund
schools which are established on a religious basis. However, if a State Party chooses to
provide public funding to religious schools, it should make this funding available without
discrimination’’.214
66. Given that the denominational school in the Mona case was publicly funded,
there appears to be no good reason in principle to exclude such a school from the nondiscriminatory provisions of international human rights law. It was not shown in the
Mona case that the practice of wearing the Islamic headscarf affected the rights of other
pupils or was against public order. The actual outcome in this case was that after Mona’s
case was dismissed and she was not allowed to wear the Islamic headscarf, Mona had no
choice but to loose her education in a school of good quality and join in a school whose
quality of education was not of a comparable quality.215 In this case, it is likely that respecting Mona’s right to wear the Islamic headscarf while at school would have, in reality,
enabled her to remain in a good quality school and thus access good quality education.
Such forms of discrimination by non-State actors require urgent attention. As the Committee on the Rights of the Child noted:
The Committee is concerned that discrimination, contrary to article 2 of the Convention, persists in the State party, and that non-discrimination is not expressly guaranteed under the Constitution. In particular, the Committee is concerned about
discrimination against girls and women, especially in the context of religious laws,
discrimination on religious grounds, inequalities in the enjoyment of the economic,
social and cultural rights (i.e. access to education, health care and social services) of
Israeli Arabs, Bedouins, Ethiopians and other minorities, children with disabilities
and children of foreign workers, and of the rights and freedoms of Palestinian children in the occupied territories.216
211 Ibid.
212 ICCPR, Article 26 provides: ‘‘All persons are equal before the law and are entitled without any discrimination to
the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all
persons equal and effective protection against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status’’.
213 HRC, General Comment 28: Equality of Rights Between Men and Women (Article 3), UN Doc CCPR/C/
21/Rev.1/Add.10 (2000), para. 31.
214 HRC, Arieh Hollis Waldman v. Canada, Communication No. 694/1996, (3 November 1999).
215 A. Scolnicov, Children’s Right to Freedom of Religion in a Multi-Religious Society, (2001), (www.cesnur.org/
2001/london2001/scolnicov.htm).
216 See CRC Committee, Concluding Observations: Israel, CRC/C/15/Add.195, 9 October 2002, para. 26.
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Chinese JIL (2007)
As a State party to international human rights treaties (such as the ICESCR, ICCPR and
CRC) protecting non-discrimination in education, the ‘‘excessive emphasis upon the
[Israel] State as a ‘Jewish State’ encourages discrimination and accords a second-class
status to its non-Jewish citizens’’.217 This discriminatory attitude is apparent in the continuing lower standard of living of Israeli Arabs as a result, inter alia, of a lower level of education and unemployment rates.218
II.E. Islamic face veil (Niqab/Purdah) and the right to education
67. There is some theological dispute among Islamic scholars and Muslims about the status of
the niqab/purdah (a body veil covering the face with an eye-slit) in Islamic religion. Some
Islamic scholars consider it ‘‘obligatory’’ for all Muslim women from the age of puberty,219
others ‘‘recommended’’ but not obligatory, whereas others consider it only ‘‘permissible’’
(not prohibited) but neither obligatory nor recommended.220 Some Muslims reject it vigorously but they agree with the headscarf.221 In October 2006, the eminent Islamic scholar
Dr Abdul-Fattah Ashoor, professor of exegesis of the Qur’an at Al-Azhar University, stated that:
the first ruling, wearing niqab, remains optional to one who desires to wear it and
whose circumstances so allow. This will be a praiseworthy step on her part. The
second ruling, covering the woman’s whole body except the face and hands, is the
ultimate obligation that the Islamic Shari’ah ordains on every Muslim woman.222
Although some Muslim women wear a niqab as an aspect of freedom to manifest Islamic
religion, it is not clear whether this can be considered to be a religious practice, and if so
whether it can be restricted in public educational institutions in the absence of the necessity
to ‘‘protect public safety, order, health, or morals or the fundamental rights and freedoms of
others’’.223 In 2005, one member of the UN HRC in the case of Raihon Hudoyberganova v.
Uzbekistan,224 Ms Ruth Wedgwood, indicated in her dissenting opinion that a State might
be allowed to restrict the covering of a student’s face if this directly interferes with ‘‘effective
217 CESCR, Concluding Observations: Israel, E/C.12/1/Add.90, 23 May 2003, para. 16.
218 Ibid.
219 See, e.g. S. Ibn Uthaimin, The Islamic Hijab, in: M.B. Al-Musnad (ed.), Islamic Fatawa Regarding Women
(Darussalam, 1996) 289 –290; S. Muhammed Salih Al-Munajjid, Question No. 11774: Ruling on Covering
the Face, with Detailed Evidence, at Islam Question and Answer (www.islamqa.com/index.php?ref¼11774&
1n¼eng); Truth Regarding Niqaab (www.allaahuakbar.net/womens/niqaab.htm).
220 Y. Al-Qaradawi, Face Veil: Innovated or Obligatory?, 19 November 2006, at Islam on Line Fatwa Bank, (www.
islamonline.net/servlet/Satellite?pagename¼IslamOnline-English-Ask_Scholar/FatwaE/
FatwaE&cid¼1161242210171); S. Naasiruddeen al-Albaanee, The Main Errors of Those Who Make the Face
Veil Obligatory: from the Book Jilbaab al-Mar’ah al-Muslimah (www.islamicweb.com/beliefs/women/albani_niqab.htm); Niqab is not Required in the Islamic Law (www.islamicweb.com/beliefs/women/Niqab_
not_required.htm).
221 See Al-Muhajabah, Understanding the Face Veil (www.muhajabah.com/faceveil.htm).
222 Abdul-Fattah Ashoor, Face Veil and Gradualness in Legislation, 17 October 2006, (www.islamonline.net/
servlet/Satellite?pagename¼IslamOnline-English-Ask_Scholar/FatwaE/FatwaE&cid¼1159951503043).
223 ICCPR, Article 18(3).
224 Communication No. 931/2000, UN Doc CCPR/C/82/D/931/2000 (2004).
Q2
Ssenyonjo, The Islamic Veil 689
pedagogy’’.225 Pedagogy refers to ‘‘the principles, practice or profession of teaching’’.226 She
noted that a university instructor might wish to ‘‘observe how a class of students is reacting to
a lecture or seminar, or to establish eye contact in asking and responding to questions’’.227 In
such circumstances, where it is established that a face veil has affected negatively an established principle or practice of effective teaching, a proportionate restriction might be considered necessary. A ban on the niqab could also be regarded as justified by the need to
be able to identify and communicate with pupils. For example, in Sweden, mandatory directives were issued in 2003 by the National Education Agency.228 These allow schools to prohibit the burka and niqab, provided they do so in a spirit of dialogue on the common values
of equality of the sexes and respect for the democratic principle on which the education
system is based.229
68. In R. (on the application of X ) v. The Headteachers of Y School and the Governors of Y
School,230 the UK High Court considered the claim of a 12-year-old Muslim girl who was a
pupil at Y school. She wished to wear the niqab when she attended the school and while she
was being taught by male teachers or likely to be seen by men because she genuinely believed
‘‘it was compulsory to wear the niqab’’. The claimant and her parents were told by the head
teacher of the school that she was not permitted to wear the niqab (although the hijab headscarf was permitted) because the niqab veil did not conform to the school uniform policy.
The claimant sought judicial review of the decision of the head teacher of the school not
to allow her to attend the school wearing the niqab. She claimed, inter alia, that the
school acted unlawfully (incompatibly with the ECHR) because the refusal to allow her
to wear the niqab at the school constituted a breach of her rights under Article 9 of the
ECHR. The court held that although Article 9 was engaged, the claimant’s Article 9
rights were not infringed or interfered with by the school’s decision not to allow her to
wear the niqab. The court accepted that the following reasons for requiring the claimant
not to wear the niqab were sufficiently important to justify limiting the Article 9 right.231
First, educational factors resulting from a teacher being unable to see the face of the girl
with a niqab since ‘‘being able to see facial expressions is a key component of effective classroom interaction’’. Secondly, the court accepted the importance of a uniform policy as promoting ‘‘uniformity and an ethos of equality and cohesion’’. Thirdly, it was accepted that the
need for security requires members of staff to be able to identify a person on the school premises without difficulty to avoid a ‘‘possibility for an unwelcome person wishing to move
around incognito to wear a niqab’’. Fourthly, avoiding applying pressure on other
225 Ibid., Dissenting Opinion of Ms Wedgwood.
226 See Collins English Dictionary, (HarperCollins Publishers 1999), 1143.
227 Ibid.
228 The GC Judgment, above n. 15, para. 63.
229 Ibid. Similarly, in Netherlands, ‘‘as a rule veils which cover the face are prohibited in schools’’. See EUMC,
above n. 5, 42.
230 [2006] EWHC 298 (Admin), (www.judiciary.gov.uk/docs/judgments_guidance/x_v_y_school_full210207.pdf).
231 Ibid., paras. 64, 82, 88 and 91.
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Muslim girls (either from the families of the Muslim girls or from their friends at school) to
wear a niqab. Finally, that according to the ‘‘opinion of other Muslims’’ the school’s uniform
policy met the religious requirements of Islam and that it should not be expected that a girl
should cover her face while at school.232
69. While the court’s conclusion could be justified on the basis of some of the reasons
stated above, as already observed, subjecting individual religious beliefs to ‘‘main stream
Muslim opinion’’ fails to take into account the individual dimension of freedom to manifest
one’s religion or belief. The fact that other Muslims do not consider the niqab to be a religious requirement (whether at school or elsewhere) should not be the overriding factor in
deciding whether or not it should be prohibited in schools. This is so because, as noted
above, views on the niqab in Islam reasonably, comprehensively and comprehensibly
differ. While some scholars consider it compulsory, others maintain that the niqab ‘‘is absolutely not considered an essential part of Islamic attire for women’’.233 There are even some
who argue that it is an ‘‘innovation’’ or a cultural practice discriminatory against women
and not a requirement of Islam and support its prohibition.234 As shown below, some domestic courts (like in Egypt and Malaysia) have held that covering the face is not a compulsory
Islamic religious requirement. If this opinion is accepted, it would follow that a face veil
would not be protected as a religious practice. Nonetheless, as noted above, since
freedom of religion under the ECHR ‘‘excludes any discretion on the part of the State to
determine whether religious beliefs or the means used to express such beliefs are legitimate’’,235 in such cases, it is the belief of a particular individual (rather than main stream
opinions or beliefs) which should be protected subject to Article 9(2) limitations and
other relevant human rights considerations which might be at stake depending on the
facts of each case.
II.F. Supreme Constitutional Court of Egypt and the face veil
70. As of June 2006, Egypt’s population was approximately 73.7 million, of whom almost
90 per cent were estimated to be Sunni Muslims.236 Islam is the official State religion and
Shari’a is the primary source of legislation; religious practices that conflict with the Government’s interpretation of Shari’a are prohibited.237 In 1996, in Mahmud Sami Muhammad
232 Ibid., paras. 64, 82, 88 and 91.
233 See, e.g. S. Ahmad Kutty, Problems due to Wearing Niqab, (16 October 2006), (www.islamonline.net/servlet/
Satellite?pagename¼IslamOnline-English-Ask_Scholar/FatwaE/FatwaE&cid¼1152715367889).
234 See the different views on the niqab in Islam at www.muhajabah.com/niqab-index.htm. One UK Islamic
scholar, Mufti Abdul Kadir Barkatullah, who is affiliated to the Muslim Council of Britain, stated: ‘‘I am
100% sure that wearing the niqab is not obligatory on Muslim women – it is a matter of choice. It’s more
about habit than religion. The Tablighis [one of the Muslim sects] observe the niqab very strictly’’. See
A. Tahel, Veil Teacher Was Obeying a Fatwa, Sunday Times, 29 October 2006.
235 Manoussakis and Others v. Greece, Judgment of 26 September 1996, (1996) 23 EHRR 387, para. 47.
236 See Egypt in International Religious Freedom Report 2006 (www.state.gov/g/drl/rls/irf/2006/71420.htm).
237 Ibid.
Ssenyonjo, The Islamic Veil 691
case, the Supreme Constitutional Court of Egypt on Islamic Law considered the question of
whether Islamic Law requires women to wear a face veil.238
71. In this case, the Minister of Education issued a decision prohibiting female students
from wearing the niqab ( face veil) at school. In accordance with this decision, two Muslim
girls were expelled from a secondary school for wearing the niqab. It was claimed that their
expulsion violated principles of Islamic Law, personal freedom and freedom of religion under
Egypt’s Constitution.239 The Court held that ‘‘it is not permitted for [a woman’s] clothing
to exceed the bounds of moderation’’ but that ‘‘it should not cover the entire body so as to
restrict her. Nothing should appear of their [women’s] beauty except what is not awra
[ private], namely her face and palms’’. The Court concluded that:
There is no indicator (dalil ) in the Quranic texts or in our honourable sunna
[reported sayings and practices of Prophet Muhammad] that legally conforming
women’s clothing, to be approved by the shari’a, must veil totally; [that it must]
include a niqab draped over her so that nothing appears except her eyes and two
eye sockets; and [that it] must require the covering of her face, palms, (and, according
to some, feet). This is not an acceptable interpretation, nor is it known by necessity
of religion. The agreed-upon meaning of awra does not extend to these parts of the
body. . . . What some opine about this – that everything about a woman is private,
even her fingernails – is refuted by the fact that [the four classical schools of Sunni
Islamic legal interpretation] Malik, Abu Hanifa, Ahmad ibn Hanbal (in one opinion
attributed to him) and the majority of the Shafi’i jurists did not hold such [an
opinion]. The Prophet, peace be upon him, explained that when a woman reaches
puberty, it is necessary that her robe cover her body except her face and palms.240
72. Although the above decision might be theologically tenable, it is problematic in as far as
it fails to take into account the fact that religious views/interpretations even within the same
religion might reasonably differ even as regards the extent of the Islamic dress.241 An interference with an individual’s right to manifest freedom of religion or belief should not be
238 Mahmud Sami Muhammad Ali Wasil, in his Capacity as Natural Guardian of his Two Daughter, Maryam and
Hajir v. The Minister of Education Case No. 8 of Constitutional Judicial Year 17 (18 May 1996). See
C.B. Lombardi and N.J. Brown, The Supreme Constitutional Court of Egypt on Islamic Law, Veiling and
Civil Rights: an Annotated Translation of Supreme Constitutional Court of Egypt, 21(3) American University
ILR (2006), 437 –460.
239 Egypt Constitution, Articles 2, 41 and 46. Article 2 stipulates that Islam is the religion of the state and that the
principles of Sharia (Islamic Law) are the chief source of all its legislation. Article 41 reads: ‘‘Personal freedom is
a natural right. . .’’, whereas Article 46 provides: ‘‘The State shall guarantee the freedom of belief and the
freedom to practice religious rites’’.
240 Mahmud Sami Muhammad Ali Wasil, above n. 238.
241 One Islamic scholar, Sheikh Muhammad Iqbal Nadvi, Imam of Calgary Mosque, Alberta, Canada, and Former
Professor at King Saud University, Riyadh, Saudi Arabia, stated: ‘‘The issue of niqab (covering the whole body
including the face) is a basic condition of hijab (Muslim woman’s dress) in one school of fiqh [Islamic jurisprudence], while it is recommended part of hijab in other schools’’. See When the Niqab Conflicts with the Law,
(3 June 2003), (www.islamonline.net/servlet/Satellite?cid¼1119503547012&pagename¼IslamOnlineEnglish-Ask_Scholar%2FFatwaE%2FFatwaEAskTheScholar).
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justified simply on the grounds that an individual’s beliefs (such as to wear a niqab ) are contrary to the views of the majority-established religious beliefs (that the niqab is not a requirement).242 States should not discriminate against any religion or belief for any reason,
including the fact that they are newly established or represent religious minorities that
may be the subject of hostility on the part of a predominant religious community.243 As
shown below, Islam as a religion does not prohibit a Muslim woman from wearing the niqab.
II.G. Malaysian Supreme Court and the face veil
73. By 2006, Malaysia had an estimated population of 25.6 million and according to the
2000 census figures, approximately 60 per cent of the population practiced Islam.244
Islam is recognized in the Malaysian constitution as ‘‘the religion of the Federation’’.245
In Hjh Halimatussaadiah case,246 the Supreme Court of Malaysia considered whether a
government circular247 which prohibited women civil servants during office hours from
wearing the Islamic dress which covered their faces was unconstitutional for infringing
Article 11(1) of the 1957 Federal Constitution of Malaysia,248 which reads: ‘‘Every
person has the right to profess and practice his religion and, subject to Clause (4), to propagate it’’. The plaintiff was dismissed for breaching the circular by wearing purdah, (bodylength veil with an eye slit), which she considered the Quran mandated. The Supreme
Court affirmed the High Court’s decision to dismiss the plaintiff’s action on the ground
that ‘‘wearing a purdah has nothing to do with the appellant’s right to profess and practice
her Muslim religion’’.249 The Supreme Court held that ‘‘Islam as a religion does not prohibit
a Muslim woman from wearing, nor requires her to wear a purdah’’.250 It accepted expert
evidence that wearing purdah was an Arabic custom and not religiously mandated.251 Consequently, wearing purdah was considered to be a practice that did not attract Article 11(1)
( freedom of religion) protection. It follows that if a similar case would arise in an educational
context—involving the dismissal of a pupil or student for wearing a purdah—the Court
would not accept (if the above reasoning is applied) the argument that there was denial of
access to education due to religious grounds or a failure to respect parents’ religious convictions in the education of their children.
242 HRC, General Comment 22, above n. 24, para. 20.
243 Ibid., para. 2. See also ECtHR, Manossakis v. Greece (1996) 3 EHRR 387 and Larrisis v. Greece [1998]
EHRLR 505.
244 See Malaysia in: International Religious Freedom Report 2006 (www.state.gov/g/drl/rls/irf/2006/
71347.htm).
245 Ibid. See also S. Ahmad, Islam in Malaysia; Constitutional and Human Rights Perspectives, 2(1) Muslim World
J Human Rights (2005) (www.bepress.com/mwjhr/vol2/iss1/art7).
246 Hjh Halimatussaadiah bte Hj Kamaruddin v. Public Services Commission Malaysia [1994] 3 MLJ 61 (Supreme
Court).
247 The Service Circular No 2 of 1985 also prohibited civil servants from wearing jeans, slacks and shorts.
248 Laws of Malaysia: Federal Constitution (MDC Publishers 2003).
249 Hjh Halimatussaadiah, above n. 246, 62C.D.
250 Ibid., 71C.
251 Ibid., 71G-I.
Ssenyonjo, The Islamic Veil 693
74. It would appear that the Court did not give serious attention to the view that the applicant at all material times sincerely held the religious belief which she professed to hold—the
belief that wearing a purdah was religiously mandated. This belief is not isolated because
there is at least a minority of Muslims who believe that Islam requires Muslim women to
wear the niqab or a purdah. As shown above, this view is supported by some Islamic scholars.
The applicant’s belief need not conform to the belief of mainstream Muslims. It was not the
less a religious belief because her belief was considered not conform to that of mainstream
Muslims, or because it was a belief shared by a small minority of individuals. Since one essential aspect of freedom of religion ‘‘excludes assessment by the State of the legitimacy of religious beliefs or the ways in which those beliefs are expressed’’252 except in ‘‘very exceptional
cases’’,253 religious groups generally have the right to interpret their own religious texts and
then follow the derived meaning. In this type of case, it would be preferable if the refusal to
allow a woman to wear purdah is considered to constitute an interference with her right to
manifest her religion or belief in practice or observance. The State could then be called upon
to explain and justify its decision by showing that the limitations (e.g. in a school context) are
‘‘prescribed by law’’ and are ‘‘necessary’’ to protect public safety, order, health or morals, or
the fundamental rights and freedoms of others.
III. Teacher Islamic dress and the right to work
75. As noted above, one aspect of the right to education is the availability in sufficient quantity of functioning educational institutions and programmes within the jurisdiction of the
State.254 Such institutions require ‘‘trained teachers receiving domestically competitive salaries’’.255 Teachers should be entitled to exercise all human rights generally enjoyed by everyone.256 As recognized in several international human rights instruments, every individual
(including a teacher) has the right to be able to work, allowing him/her to live in
dignity.257 The ICESCR proclaims the right to work in a general sense in its Article 6,258
and explicitly develops the individual dimension of the right to work through the recognition
252 ECtHR, Metropolitan Church of Bessarabia and Others v. Moldova, Application 45701/99, 2001-XII, Judgment of 13 December 2001, (2002) 35 EHRR 13, para. 117.
253 ECtHR, Hasan and Chaush v. Bulgaria, Application 30985/96, 34 (2002) 34 EHRR 55.
254 CESCR, General Comment 13, above n. 33, para. 6(a).
255 Ibid.
256 See the ILO/UNESCO Recommendation concerning the Status of Teachers, adopted by the Special Intergovernmental Conference on the Status of Teachers, Paris, 5 October 1966, paras. 79 –84, (www.ilo.org/
public/english/dialogue/sector/techmeet/ceart/teache.pdf ).
257 See, e.g. ICCPR, Article 8(3); ICERD, Article 5(e)(i); CEDAW, Article 11(1)(a); CRC, Article 32 and the
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their
Families, Articles 11, 25, 26, 40, 52 and 54. The right to work has been proclaimed by the United Nations
General Assembly in the Declaration on Social Progress and Development, in its resolution 2542 (XXIV) of
11 December 1969 (Article 6).
258 In Article 6(1), States parties recognize ‘‘the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard
this right’’.
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in Article 7 of the right of everyone to the enjoyment of just and favourable conditions of
work, in particular the right to safe working conditions. The Committee on Economic
Social and Cultural Rights (CESCR) noted that:
The right to work, as guaranteed in the ICESCR, affirms the obligation of States
parties to assure individuals their right to freely chosen or accepted work, including
the right not to be deprived of work unfairly.259. . . Violations of the obligation to
protect follow from the failure of States parties to take all necessary measures to safeguard persons within their jurisdiction from infringements of the right to work by
third parties. They include omissions such as the failure to regulate the activities of
individuals, groups or corporations so as to prevent them from violating the right
to work of others; or the failure to protect workers against unlawful dismissal.260
76. States are bound by the obligation to respect the right of women to have access to decent
work and thus to take measures to combat discrimination and to promote equal access and
opportunities.261 In the context of Article 6 of the ICESCR, the ‘‘core obligation’’ of States
‘‘encompasses the obligation to ensure nondiscrimination and equal protection of employment’’ in the private and public sectors of disadvantaged and marginalized individuals and
groups.262
77. Some States have banned teachers from wearing religious symbols, generally, and the
Islamic dress, in particular, in schools. In Turkey, for example, ‘‘women who wear the headscarf are barred from state employment, taking up elected posts in parliament, appearing as
lawyers in court, working as teachers in private schools and universities and, in some cases,
even from venturing onto state property’’.263 It has been claimed that enforcing bans on the
wearing by teachers of the Islamic dress is justified on the basis of the principles of the ‘‘neutrality’’ of the State primary-education system (like in the Germany context)264 or ‘‘secularism’’ (such as in the French and Turkish contexts).265 In this section, consideration is given
to the developments in the UK, Switzerland and Germany where such cases have arisen. Two
issues are considered below: first, is the ban of a teacher Islamic dress at school a permissible
restriction of the freedom of religion that conforms to international human rights law?
Secondly, does the ban on the wearing of the Islamic dress, or any feature of Islamic dress,
by female Muslim teachers (often disadvantaged and marginalized) at public schools unfairly
deprive female Muslim teachers of employment?
259 CESCR, General Comment 18: The Right to Work, E/C.12/GC/18 (6 February 2006), para. 4.
260 Ibid., para. 35.
261 Ibid., para. 23 and 33. The principle of nondiscrimination mentioned in Article 2(2) of the ICESCR is immediately applicable and is neither subject to progressive implementation nor dependent on available resources.
262 Ibid., para. 31.
263 HRW, above n. 48.
264 See Section III.C.
265 See Section II.A.
Ssenyonjo, The Islamic Veil 695
III.A. Teacher face veil: the UK example
78. Muslim women in the UK have claimed that wearing the Islamic dress can be a barrier to
Muslim women getting employment as employers see the veil, not the person.266 Job opportunities and promotions are also alleged to be affected by the employers’ negative attitudes
towards the Islamic dress.267 The 1997 Islamophobia report noted that within Britain
‘‘Muslims are frequently excluded from the economic, social and public life of the
nation. . . and are frequently victims of discrimination and harassment’’.268 Particularly in
the aftermath of September 11 in the United States, July 7 in the UK and similar terrorist
atrocities in other parts of the world, and the ‘‘war against terror’’, Islam and Muslim values
and patterns of social interaction have increasingly been at the centre of a debate concerning
their compatibility with ‘‘western values’’.269 Some female Muslim teachers wearing the
hijab while teaching in public primary schools have been suspended or dismissed from teaching jobs for refusing to remove the veil.270 The use of the hijab at the workplace is still not
readily acceptable for the mainstream British society.
79. The Employment Tribunal in the UK considered the issue of alleged discrimination at
work on the basis of religion in the case of Aishah Azmi v. Headfield School and Kirklees
Metropolitan Borough Council.271 This was the first high-profile case in the UK that was
brought under the Employment Equality (Religion or Belief ) Regulations 2003.272 These
regulations attempt to give effect to the general framework for equal treatment Directive—
the European Union Council Directive 2000/78EC—in the sphere of religion or belief.
They prohibit ‘‘direct discrimination’’, ‘‘indirect discrimination’’ and discrimination by
way of ‘‘victimization’’ or ‘‘harassment’’ in the workplace by reason of ‘‘any religion, religious
belief or similar philosophical belief’’.273 In broad terms, under the regulations, direct discrimination occurs where the complainant is treated less favourably than other persons on
grounds of religion or belief,274 indirect discrimination occurs where the employer imposes
266 See DCLG, above n. 13, 11.
267 Ibid.
268 Commission on British Muslims and Islamophobia, Islamophobia: a Challenge for Us All Runnymede Trust,
London, (1997), 1. Islamophobia has been defined as ‘‘dread or hatred of Islam – and, therefore, fear or dislike
of all or most Muslims’’.
269 EUMC, above n. 5, at 31. See also B. Johnston, Islam is Inferior, Says Berlusconi, Daily Telegraph, 27
September 2001. S. Berlusconi, the Italian prime minister, commented that ‘‘we [in the West] must be
aware of the superiority of our civilisation, a system that has guaranteed well-being, respect for human rights
and – in contrast with Islamic countries – respect for religious and political rights’’. He added that he felt
that ‘‘Islamic civilisation is stuck where it was 1,400 years ago’’.
270 See, e.g. M. Wainwright, Tribunal Dismisses Case of Muslim Woman – Ordered Not to Teach in Veil, The
Guardian, 20 October 2006.
271 Employment Tribunal, case number 1801450/2006, 6 October 2006; Employment Appeals Tribunal, Appeal
No. UKEAT/0009/07/MAA, 30 March 2007, (www.employmentappeals.gov.uk/Public/Upload/
07_0009ResfhAMMAA.doc). See also D. Wise, Wearing the Veil, 156 New Law Journal (2006), 1786 (24
November 2006).
272 SI 2003/1660.
273 Ibid., Regulations 2–5.
274 Ibid., Regulation 3(1)(a).
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a provision, criterion or practice which applies or would apply equally to persons not of the
same religion or belief but puts persons of one particular religion or belief at a particular disadvantage compared with persons of another religion or belief, and the employer cannot show
(such a provision, criterion or practice) to be a proportionate means of achieving a legitimate
aim.275 A claim for victimization will arise where a person receives less favourable treatment
simply by virtue of the fact that they have previously raised a complaint (or by reason that
the employer knows that a person intends to raise a complaint) of religious discrimination.276
Harassment is defined as unwanted conduct on grounds of religion or belief which has the
purpose or effect of either violating another person’s dignity or creating an intimidating,
hostile, degrading, humiliating or offensive environment.277
80. It is useful to recall the brief facts in the Azmi case. Aishah Azmi was employed as a
bilingual support worker in the predominantly Muslim school of Headfield, West Yorkshire.
Her work involved assisting with maths and English for year-six pupils, aged 11. Mrs Azmi
wore a niqab ( face veil) as a religious obligation.278 The headteacher monitored Azmi’s performance in the classroom and noticed that pupils sought visual clues from Azmi which they
could not obtain because they could not see her facial expressions, and that Azmi’s diction
was not as clear or as loud as it would have been if she was not veiled. The headteacher therefore indicated to Azmi that she would not be able to wear the veil when working directly with
children in the classroom, but Azmi insisted on wearing the veil. After further monitoring,
Azmi was given a management instruction that she should be unveiled in school. However,
after stating during a meeting that she would remain veiled if required to work with male
colleagues, she was suspended for refusing to obey the management instructions.
81. Her claim before the Employment Tribunal was three-fold: first, she claimed direct
discrimination on the basis that through her suspension she was subjected to less favourable
treatment on the grounds of her religious beliefs contrary to the regulations; her comparator
being a Muslim woman who covered her head but did not cover her face. Secondly, she
claimed indirect discrimination on the basis that the requirement ‘‘not to wear clothing
which covers, or covers a considerable or part of the face and/or mouth and/or the requirement not to wear clothing which interferes unduly with the employee’s ability to communicate appropriately with pupils’’ arose out of the school’s ‘‘intention to target the veil’’ and
comprised indirect discrimination. It was argued that this was not a proportionate means
of achieving a legitimate aim. Finally, she claimed that her subsequent treatment, after complaining of religious discrimination, including comments made to her, being sent home and
being asked to return her laptop computer, amounted to harassment as well as victimization.
275 Ibid., Regulation 3(1)(b).
276 Ibid., Regulation 4.
277 Ibid., Regulation 5.
278 Her belief was stated to have been supported by a fatwa, or religious ruling, from M.Y. Sacha, a Muslim cleric in
West Yorkshire which ruled that it was obligatory for Muslim women to wear the niqab ( face-veil) in the presence
of men who were not their blood relatives. See Tahel, above n. 234. This is also supported by some interpretations
of the Quran chapters particularly An-Nur 23:31 and Al-Ahzab 33:59. See, e.g. Interpretation of the Meanings of
the Noble Quran in the English Language (Darussalam, 15th edn., 1996), 642 – 643 and 770 –771.
Ssenyonjo, The Islamic Veil 697
82. The Tribunal dismissed the claims of direct discrimination and indirect discrimination, but accepted the claim of harassment and victimization.279 First, according to the
Tribunal, the appropriate comparator was not a Muslim woman who did not cover her
face, as Azmi alleged, but a person not of the Muslim religion who covered her face for whatever reason. The Tribunal was satisfied in applying this comparator that the respondent
would have treated such a person no differently to the way in which Azmi was treated,
given the reasons for refusing to allow Azmi to wear her veil were objective ones ( face and
mouth obscured which is a barrier to effective learning by children whose education was
paramount) and unrelated to her religion or belief. Secondly, the Tribunal noted that the
requirement that while teaching the children she should not wear the veil was a legitimate
aim on the basis that Azmi’s ability to communicate fully with her pupils was of the
utmost importance. The method of achieving that aim was also found to be proportionate
in that the instruction not to wear the veil was not imposed by the school immediately, before
issuing the instruction not to wear the veil Azmi’s teaching was observed, and the instruction
was confined to those occasions when she was teaching the children.
83. Azmi appealed to the Employment Appeals Tribunal (EAT). On 30 March 2007, the
EAT held that she was not directly discriminated against on the ground of religion or belief
because ‘‘a woman who, whether Muslim or not, for a reason other than religious belief
wears a face covering’’ would be subjected to the same treatment. It found that there had
been ‘‘potentially’’ indirect discrimination on the grounds of religion or belief but that on
the facts of the case it was lawful and the school had justified their actions being proportionate in support of a legitimate aim of raising educational standards. Although the claim for
discrimination failed, the approach of the Tribunal and, in particular, the finding that
Azmi was victimized was welcomed, in part, by the Islamic Human Rights Commission
(IHRC), because it did not question whether the niqab is an Islamic religious requirement.
280
The EAT respected Azmi’s belief even if it observed that it was held by ‘‘a sizeable minority of Muslim women’’.281
84. The Azmi case is important in several respects. First, it attracted several strong comments from British politicians including British Prime Minister at the time, Tony Blair,
and the community cohesion minister, Phil Woolas, who made public comments in
support of Mrs Azmi’s employer when the matter was pending before the Tribunal.282
The leader of the House of Commons, Jack Straw, stated that the wearing of full veils—
or niqab—made community relations more difficult and that it ‘‘was such a visible statement
279 Regarding harassment and victimization, the Tribunal found in favour of Azmi. The way in which the Council
dealt with Azmi’s absence was described as ‘‘unsatisfactory and insensitive’’. She was awarded only £1100 for
‘‘injury to her feelings’’.
280 IHRC, Press Release: IHRC Response to Aisha Azmi Verdict, 19 October 2006 (www.ihrc.org.uk/
show.php?id¼2197).
281 Employment Appeals Tribunal, above n. 271, para. 54.
282 See I. Herbert, Teaching Assistant ‘‘Victimised’’ for Wearing Veil, Tribunal Rules, The Independent,
20 October 2006; P. Stokes, Teacher Who Refused to Remove Veil Wins £1,100 for Hurt Feelings, Telegraph,
20 October 2006.
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of separation and of difference’’.283 Tony Blair expressed the view that the veil was a ‘‘mark of
separation’’ which makes people of other ethnic backgrounds feel uncomfortable. The
government’s race minister, Phil Woolas, demanded Mrs Azmi be sacked, accusing her of
‘‘denying the right of children to a full education’’ because her stand meant she could not
‘‘do her job’’ and insisted that barring men from working with her would amount to
‘‘sexual discrimination’’. 284 Such statements indicated that these politicians were strongly
against the veil. The Tribunal stated that it was ‘‘most unfortunate’’ that politicians and
others had made comments on a case that was sub-judice. Tony Blair later stated that immigrants have a ‘‘duty to integrate’’ and that they should stay away unless they are prepared to
accept Britain’s traditional tolerance of other faiths.285 The scope of the alleged ‘‘duty to
integrate’’ is still unclear but it seems to suggest an attempted shift from the multi-cultural
(or multi-religious) society, that is, a society that respects and protects group rights of ethnic
and religious minorities, towards an integrated (or a more strongly assimilationist) society in
which minority identities are privatized while the dominant group has its identity universalized in the public space. However, what British Muslim minorities are claiming is that ‘‘they
should not be marginal, subordinate or excluded; that they too—heir values, norms and
voices—should be part of the structuring of the public space’’.286
85. Secondly, it is worth noting that after the Tribunal’s decision, a staff dismissals committee of the school’s governing body held a hearing into the circumstances that resulted in
Mrs Azmi’s suspension. As a result of the hearing, the committee decided to terminate her
employment.287 Thus, insisting on wearing a niqab in this case led to the loss of employment. More significantly, the decision confirmed that teachers (and other employees)
should not wear a niqab as this affects effective communication. Thus, it signalled to
Muslim women who wish to wear the niqab at the work place that they should either stay
at home or take off the niqab. In the words of Lord Hoffman, ‘‘people sometimes have to
suffer some inconvenience for their beliefs’’.288 This requires making a difficult choice
between work and religion.
86. Third, the case demonstrates that employers must give careful consideration to
ensure that judgments relating to face-veils (and other forms of religious clothing such as
283 See I Felt Uneasy Talking to Someone I Couldn’t See, The Guardian (6 October 2006) (www.politics.guardian.
co.uk/homeaffairs/story/0,,1889231,00.html).
284 See Herbert, above n. 282.
285 See N. Morris, Blair Tells Immigrants to Integrate or Stay Away, The Independent, 9 December 2006;
F. Yeoman, Accept British Way of Life or Stay Away, Blair Tells Migrants, The Times, 9 December 2006.
In the support of banning the face veils, Blair argued: ‘‘It is really a matter of plain common sense that
when it is an essential part of someone’s work to communicate directly with people, being able to see their
face is important’’.
286 See also J. Rehman, Religion, Minority Rights and Muslims of the United Kingdom, in: J. Rehman & Susan C.
Breau (eds.), Religion, Human Rights and International Law (Martinus Nijhoff, 2007), 521 –550.
T. Madood, Remaking Multiculturalism after 7/7, Open Democracy, (29 September 2005), (www.
opendemocracy.net/conflict-terrorism/multiculturalism_2879.jsp), 4.
287 P. Stokes, Teaching Assistant Sacked in Row over Veil, Telegraph, 24 November 2006; Veil Row Teacher Sacked,
Guardian, 24 November 2006; Lee Glendinning, Veil Row Teacher Sacked, Times, 24 November 2006.
288 Begum case, above n. 15, [2006] UKHL 15 at 50.
Ssenyonjo, The Islamic Veil 699
headscarves) are based on reasonable and objective criteria as opposed to religious beliefs.289
In the case of Azmi, Headfield School was able to demonstrate to the Tribunal what was
accepted as a clear and objective reason for its decision. Its reasoning appears to be supported
by recent research by Dr Markus Bindemann, from the University of Glasgow, who found
that ‘‘Faces are important social stimuli. . . . We learn social interaction – how to deal with
people and how to read them – from looking at their faces. If you just stare at a box you
don’t get any genuine interactions’’.290 The research showed that facial communication
was particularly important in children of a young age. The Tribunal’s decision in Azmi
relied fairly heavily on this evidence that visual stimulus, in looking at human faces, is an
important part of the way children communicate. 291
87. Finally, the case indicates that in the exercise of one’s freedom to manifest religion
or belief, it is relevant to take into account one’s particular professional duties or contractual position.292 Relevant factors in Aishah’s case were her voluntary acceptance of a teaching contract and her failure to inform her employers before accepting the job that she
might need to wear a niqab while teaching with male colleagues. It is worth noting that the
Tribunal’s approach seems to be in accordance with the jurisprudence established under
the ECHR. For example, in Ahmad v. UK,293 the applicant was a Muslim schoolteacher
who wanted to pray in the mosque near the school for 45 minutes every Friday afternoon.
His employer rejected the applicant’s claim and relied on the contract of employment,
which required him to work on Fridays. The applicant claimed a violation of his freedom
of religion under Article 9 of the ECHR. The Commission identified the issue as being
whether, in relying on the contract of employment, the employer was arbitrarily disregarding
the right to freedom of religion. The Commission held that the employer’s refusal did not
infringe Article 9, since the employee had voluntarily accepted a teaching post, which prevented his attendance at prayers (and had not complained, or requested time off, during
his first six years at work).
III.B. Teacher Islamic headscarf in a public primary school: the
Switzerland example
88. In Switzerland, the headscarf controversy for teachers was considered in 2001 in the case
of Dahlab v. Switzerland.294 The applicant, Dahlab, was a primary-school teacher of a Swiss
State school in a class of small children ( four to eight year olds). She converted to Islam and
began wearing long, loose clothing and a cover over her hair (not her face) to school, ‘‘her
289 A similar view has been upheld in Germany (see Bundesarbeitsgericht, 10 October 2002, 2 AZR 472/01) and
in France (see Conseil des prud’hommes, Tahri v. Teleperormance France, 17 December 2002).
290 See David Lister, Lure of a Television is Stronger than a Smile, The Times, 7 November 2006.
291 Ibid.
292 See also European Commission on Human Rights, Ahmad v. UK, Application 8160/78, (1982) 4 EHRR 126
at 133 (Court of Appeal at [1978] ICR 36; Stedman v. UK, Application 29107/95, (1997) 23 EHRR CD 168;
and ECtHR, Kalac v. Turkey, Judgment of 1 July 1997, (1997) 27 EHRR 552.
293 Ibid.
294 Application 42393/98, ECHR 2001- V, Admissibility Decision of 15 February 2001.
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intention being to observe a precept laid down in the Koran whereby women were enjoined
to draw their veils over themselves in the presence of men and male adolescents’’.295 She wore
this for a period of over four years (although some of that time was spent on maternity leave).
During that time there were no complaints from her colleagues, her pupils or their parents.
When her students asked her why she covered her head, she said it was to keep her ears
warm.296 She seemed to have been very sensitive to the idea that she should not proselytise—
so much so that she used this excuse rather than identifying herself as Muslim to her students. She was prohibited from wearing these garments in the performance of her
educational duties by the Director General of Public Education after an attempt at mediation failed. She refused and challenged the prohibition in the Swiss courts, where she lost.297
The case arose in the ECtHR as a jurisdictional matter. It is noteworthy that despite the fact
that Dahlab was limited from manifesting her religion, the Court agreed with Switzerland
that the case was so ‘‘manifestly ill-founded’’ that it did not deserve to proceed to the
merits phase for a full and proper consideration by the Court. This was so even after
noting that:
During the period in question there were no objections to the content or quality of
the teaching provided by the applicant, who does not appear to have sought to gain
any kind of advantage from the outward manifestation of her religious beliefs.298
89. Although there was no evidence that she had spoken about religion to her pupils, the
ECtHR considered that the Swiss authorities were justified in forbidding her from
wearing the Islamic headscarf at work, consistent with their legitimate aim of ensuring the
‘‘neutrality’’ of the State primary-education system. The Court stressed among other
matters that:
. . . it is very difficult to assess the impact that a powerful external symbol such as the
wearing of a headscarf may have on the freedom of conscience and religion of very
young children. The applicant’s pupils were aged between four and eight, an age at
which children wonder about many things and are also more easily influenced than
older pupils. In those circumstances, it cannot be denied outright that the wearing of
a headscarf might have some kind of proselytising effect, seeing that it appears to be
imposed on women by a precept which is laid down in the Koran and which, as the
Federal Court noted, is hard to square with the principle of gender equality. It therefore appears difficult to reconcile the wearing of an Islamic headscarf with the message of
tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a democratic society must convey to their pupils.299
295 Ibid.
296 Ibid., 456.
297 Ibid., 451 – 452; X c Conseil d’Etat du canton de Gene`ve (1997) BGE 123 I 296, at 312.
298 Ibid.
299 Ibid. (Emphasis added). The application was declared inadmissible as ‘‘manifestly ill-founded’’ under Article
35(3) of the ECHR.
Ssenyonjo, The Islamic Veil 701
90. The passage above was relied on in part by the GC in the S¸ahin case with respect to
gender equality and tolerance.300 Although this case was decided in the context of a
teacher in a primary school, the sentence italicized above appears to be very wide and may
extend to ‘‘all teachers in a democratic society’’ beyond the Swiss primary school context.
There are three key elements to the Court’s reasoning: (i) wearing the headscarf might
have a proselytising effect, (ii) it is incompatible with gender equality and (iii) it is incompatible with tolerance and respect for others. On the facts in the Dahlab case, all these
elements are of questionable character based on the following grounds.
91. First, with respect to proselytising, it is noteworthy that there was no empirical data to
indicate any harmful influence of the Islamic headscarf on children from a teacher who taught
children for only one year, especially in a school where all other teachers were not Muslims or
did not wear the headscarf. There was no evidence of direct proselytising as it was clear from the
facts that she did not tell her pupils that she was Muslim, and she did not verbally encourage
them to convert to Islam. The possible indirect evidence—wearing a headscarf—was unsatisfactory (or as the Court put it ‘‘very difficult to assess’’. If wearing of the headscarf by Dahlab
had a proselytising effect, there was no reason why this evidence from her pupils who had suffered as a result was not produced. Indeed, during the four years, she wore a headscarf at school.
There was no evidence that any of her pupils converted to Islam as a result of her headscarf or
any other behaviour. There had been no disturbance of order at the school caused by
Mrs Dahlab’s headscarf and no complaints from any child, parent or from other teachers
about Mrs Dahlab’s behaviour during the four years she had worked as a teacher, wearing
the headscarf.301 It might also be questionable as to what message is being sent to curious
and vulnerable children (some of whom were Muslim children who wore traditional
Muslim clothing)302 when their good teacher is dismissed for wearing Muslim clothing?303
92. Secondly, the Court stated that wearing the Islamic headscarf is incompatible with
gender equality, but it did not substantiate its reasoning behind this statement beyond
stating that it ‘‘appears to be imposed on women by a precept which is laid down in the
Koran’’.304 Apparently, the court implied that Dahlab’s religion (Islam) discriminated
against her on the basis of sex, and therefore, in the court’s view, the State had a duty to eliminate this discrimination. This indicates that the court determined the signification of the
Islamic headscarf as an unambiguous symbol of discrimination and gender inequality
imposed only on women (but not men) regardless of their freely chosen personal beliefs. It
is assumed that Muslim women’s religious beliefs to wear a headscarf cannot be freely
chosen, and as such veiling is in and of itself perceived as ‘‘an inherently oppressive practice’’.305
300 S¸ahin, the GC Judgment, n. 15, para. 111.
301 See Evans, above n. 58.
302 Dahlab, above n. 294, at 460.
303 See Evans, above n. 58, noting that ‘‘Dahlab transforms from a woman who needs rescuing from Islam to an
Islamic woman from whom everyone else needs rescuing’’.
304 Ibid., 463 (emphasis added).
305 N.J. Hirschmann, Western Feminism, Eastern Veiling, and the Question of Agency, 5(3) Constellations (1998),
345 –368, at 349.
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It has thus been questioned, ‘‘how can the faithful freely choose a particular form of dress when
it is their religion which ‘dictates’ [or imposes on] them what to wear?’’306 The term ‘‘impose’’
means to establish as something to be obeyed or complied with, or to enforce.307 It, thus,
implies the absence of a genuine free choice. As noted above, the Court’s view has been restated
by some feminist scholars who have claimed that wearing the veil is ‘‘a sign of male domination
over women’s bodies and lives’’.308 This argument fails to take into account the fact that not all
Muslim women wear the headscarf. From a legal perspective, a violation of the principle of
equality and non-discrimination arises if there is (a) differential treatment of (b) equal cases,
(c) without there being an objective and reasonable justification, or if (d) proportionality
between the aim sought and the means employed is lacking.309 In short, discrimination
refers to difference in treatment of others in otherwise similar situations, not treatment of
oneself, without objective and reasonable justification. Consequently, Dahlab could not
legally discriminate against herself. Except where a State or other actors enforce the compulsory
wearing of the headscarf, some Muslim women freely choose to wear headscarves out of sincere
religious beliefs and it seems incorrect to consider this as ‘‘discrimination’’. Dahlab lived in a
society where there was no imposition by the State (or non-State actors) that required women
to wear particular religious clothing. Indeed, it is clear from the case that the Swiss government
was unsupportive of the wearing of the Islamic headscarf. In this circumstance, the adoption of
the headscarf by an adult, educated, intelligent woman might be better described as voluntary
or autonomous choice and compliance with what she chose to believe to be a religious
obligation. Indeed, it is not clear how simply choosing to wear an Islamic headscarf by an
adult woman out of her free choice could not easily be reconciled with equality and nondiscrimination. There was no credible evidence to show that Dahlab wore the headscarf
because of her subordination to a particular man or to men generally, but it was her choice
of belief. As Judge Tulkens noted in her well-thought dissenting judgment in the S¸ahin case
(where the majority in the GC relied in part on the decision in Dahlab with respect to
gender equality and tolerance without further clarification):310
It is not the Court’s role to make an appraisal of this type – in this instance a unilateral and negative one – of a religion or religious practice, just as it is not its role to
determine in a general and abstract way the signification of wearing the headscarf or
to impose its viewpoint on the applicant. . . Finally, if wearing the headscarf really
was contrary to the principle of the equality of men and women in any event, the
306 See G. Lieve, What Not to Wear: Islamic Dress and School Uniforms. R (on the application of SB) v. Governors
of Denbigh High School [2006] U.K.H.L. 15, 14(3) Feminist LS (2006) 377 –389, at 384.
307 See Collins English Dictionary (HaperCollins Publishers 1999), 776.
308 Bennoune, above n. 12, at 390 –391 ( footnote references omitted).
309 See A.W. Heringa and F. Van Hoof, Prohibition of Discrimination, in: Van Dijk, above n. 166, 1027 – 1051, at
1035.
310 S¸ahin, the GC Judgment, above n. 15, para. 111. See also Anastasia Vakulenko, ‘‘Islamic Headscarves’’ and the
European Convention on Human Rights: An Intersectional Perspective, 16(2) Social and Legal Studies (2007),
183 –199, at 192.
Ssenyonjo, The Islamic Veil 703
State would have a positive obligation to prohibit it in all places, whether public or
private.311
93. The Court does not appear to have given much weight to the argument that the experience of being taught by a woman in the hijab might have passed on to the children positive
messages about the equality of different religious and cultural groups.312 Wearing the headscarf or the veil has no single meaning; it is a practice that is engaged in for a variety of
reasons—e.g. it may represent freely chosen personal and sincere religious beliefs that such
‘‘modesty’’ dress is required by the teachings of the Muslim religion, proclaim Muslim identity or an alleged affiliation to an Islamist political project aimed at a theocracy.313 While
headscarf-wearing Muslim women deny that it is a political symbol, its critics have succeeded, at the very least, in politicising the headscarf.314 Other reasons for wearing a headscarf include the need to assert gender difference, protection from unwanted sexual advances,
gain access to public spaces, conform to alleged familial or societal expectations or accede to
familiar pressure.315 It does not necessarily symbolize the absence of choice or the submission of women to men and there are those who maintain that, in certain cases, it can
even be an instrument of independence or a means of emancipating women.316 As Judge
Tulkens noted what is lacking in this debate is the opinion of women, both those who
wear the headscarf and those who choose not to.317
94. The final justification for banning the (teacher) headscarf is that it is incompatible with
a tolerant, secular society that respects the rights and freedoms of others. This suggests that
there is a presumed link between the headscarf and the ‘‘extremist political movements’’
which seek to impose on society as a whole their religious symbols and conception of a
society founded on religious precepts318 Thus, the veil has been seen as signifier of intolerance while secularism has been perceived to be ‘‘a prerequisite to the enjoyment of human
311 Tulkens Dissent, above n. 77, para. 12. See also HRC, General Comment 28, Equality of Rights Between
Men and Women (Article 3), U.N. Doc. CCPR/C/21/Rev.1/Add.10 (2000), para. 4 stating that Articles 2
and 3 of the ICCPR mandate: ‘‘States parties to take all steps necessary, including the prohibition of discrimination on the ground of sex, to put an end to discriminatory actions both in the public and the private sector
which impair the equal enjoyment of rights’’.
312 See C. Ovey and R.C.A. White, Jacobs and White The European Convention on Human Rights (Oxford
University Press, 4th edn., 2006), 310.
313 See, e.g. Bennoune, above n. 12, 388 –389.
314 Fogel, below n. 338, 631.
315 N. Choudhury, From the Stasi Commission to the European Court of Human Rights: L’affaire du Foulard and
the Challenge of Protecting the Rights of Muslim Girls, 16 Columbia J Gender and Law (2007), 199 –296, at
293.
316 See Ludin, above n. 15; Tulkens Dissent, above n. 77, para. 11; Brems, above n. 61, 124; P. Werbner, Veiled
Interventions in Pure Space: Honour, Shame and Embodied Struggles among Muslims in Britain and France,
24(2) Theory, Culture and Society (2007), 161 –186, at 179.
317 Tulkens Dissent, ibid. See also Sevda Clark, Female Subjects of International Human Rights Law: The Hijab
Debate and the Exotic Other Female, 19(1) Global Change, Peace and Security (2007), 35 –48.
318 S¸ahin, the Grand Chamber Judgment, n. 15, para. 115 referring to the Chamber Judgment, para. 109. See also
Karaduman v. Turkey (1993) 74 DR 93, at 7. The ECmHR explained that a stance against the Islamic headscarf
was justified in view of ‘‘certain religious fundamentalist currents’’.
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rights’’.319 However, the evidence in the Dahlab case shows neither that she coerced her
pupils to dress, behave or believe in her religion nor that she excluded or treated less favourably any of her pupils who did not wear a headscarf from her classroom. She did not belittle
the beliefs of others or promote the superiority of her own views apart from simply complying with her freely chosen religious beliefs.
95. In sum, the headscarf per se on the facts in the Dahlab case could not simply be considered as a sign of intolerance, lack of respect for others or discrimination against women.
The court’s approach in this case, and in other cases involving religious manifestation by the
Islamic headscarf, indicates that manifestation or expression of religion by the Islamic headscarf has been perceived as discriminatory against women. Thus, the 2005 Parliamentary
Assembly’s Resolution on Women and Religion in Europe proclaims that the ‘‘influence
[of religion on the lives of women] is seldom benign: women’s rights are often curtailed
or violated in the name of religion’’. 320 The Resolution states that: ‘‘Freedom of religion
cannot be accepted as a pretext to justify violations of women’s rights, be they open or
subtle, legal or illegal, practised with or without the nominal consent of the victims –
women’’.321 Accordingly, ‘‘it is the duty of the member states of the Council of Europe
to protect women against violations of their rights in the name of religion and to
promote and fully implement gender equality’’,322 including when underage girls are
forced to submit to religious codes (including dress codes).323
III.C. Teacher headscarf in a public secondary school: the Germany
example
96. In Germany, the headscarf debate was triggered by the Ludin case.324 This section makes
a brief review of this case. Fereshta Ludin, a 26-year-old German schoolteacher of Muslim
faith, was turned down for a permanent civil servant teaching position in a primary school in
the Baden-Wu¨rttemberg school system because the Islamic headscarf she wore in the classroom was considered incompatible with the principle of separation of church and state in the
German Basic Law (Grundgesetz).325 Ludin was born in Kabul, Afghanistan, in 1972,
moved to Germany in 1987, and became a German citizen in 1995.326 After having
passed the First State Examination (required of all teachers in Germany), and after having
319 See Bennoune, above n. 12, 367 –426.
320 Resolution 1464 (2005) of 4 October 2005, para. 2 (www.assembly.coe.int/Main.asp?link¼/Documents/
AdoptedText/ta05/ERES1464.htm#_ftn1).
321 Ibid., para. 5.
322 Ibid., para. 6.
323 Ibid., para. 7.4.
324 Case No. 2BvR 1436/02 (Bundesverfassungsgericht [BVerfG; Constitutional Court] 24 September 2003),
hereinafter Ludin Judgment. For a discussion, see R.A. Kahn, The Headscarf as Threat: a Comparison of
German and U.S. Legal Discourses, 40 Verderbilt J Transnational L (2007), 417 –444.
325 See the Basic Law for the Federal Republic of Germany (www.bundestag.de/htdocs_e/info/germanbasiclaw.
pdf ). See also ‘‘Teacher Headscarf Case’’ 100 American JIL (2006), 188 –190.
326 Ludin Judgment, above n. 324, para. 2.
Ssenyonjo, The Islamic Veil 705
completed a required apprenticeship, Ludin passed the Second State Examination for teachers in primary and secondary schools.
97. In July 1998, the state of Baden-Wu¨rttemberg’s board of education (Oberschulamt)
declined Ludin’s application for employment as a teacher in primary and secondary schools
in the state of Baden-Wu¨rttemberg on the ground that she was not ‘‘suitable’’ (geeignet) for
the teaching profession.327 According to the board of education’s office in Stuttgart, Ludin
showed no interest in removing her headscarf while teaching classes. From the board of education’s point of view, this refusal was problematic because the board believed that the
Islamic headscarf had a ‘‘signalling effect’’ (Signalwirkung), which it considered incompatible with the principle of ‘‘state neutrality’’ (staatlichen Neutralita¨tsgebot). The board feared
that the wearing of headscarves by teachers in Baden-Wu¨rttemberg’s primary and secondary
schools would not only force impressionable young students to confront Islam, but, more
importantly, undermine the objective of integration, notably of Muslim girls. In this
context, the board considered the headscarf to be an expression of cultural demarcation
and therefore a political, as well as a religious, symbol.328
98. Ludin appealed this decision through three levels of the German administrative courts:
from the administrative court (Verwaltungsgericht) of Stuttgart (decision of 24 March 2000)
to the administrative court (Verwaltungsgerichtshof ) of Baden-Wu¨rttemberg (26 June
2001), to the Federal Administrative Court (Bundesverwaltungsgericht) (4 July 2002), the
highest court of appeal for administrative law in Germany. The Federal Administrative
Court upheld the board of education’s denial of employment to Ludin and ruled that teachers in public schools must refrain from openly displaying religious symbols in class.329 It
reasoned that public school teachers are representatives of the State and must serve as role
models for students.
99. Having exhausted all possible lines of appeal in the German administrative court
system, Ludin launched a ‘‘constitutional complaint’’ (Verfassungsbeschwerde) with the
German Constitutional Court (Bundesverfassungsgericht). Her complaint alleged that her
basic right of religious freedom, as enshrined in German Basic Law Article 4, had been violated.330 Specifically, Ludin maintained that her wearing of the headscarf was a characteristic
of her personality and an expression of her internal religious beliefs. Therefore, she claimed
a violation of her rights under German Basic Law Articles 1(1) (human dignity), 2(1)
( personal freedoms), 3(1) and (3) (equality before the law), 4(1) and (2) ( freedom of
faith, conscience and creed) and 33(2) and (3) (equal citizenship and equal access to civil
service employment).
100. On 24 September 2003, the Constitutional Court overturned the Federal Administrative Court’s decision and upheld Ludin’s right to wear a headscarf in the classroom. The
327 Ibid., para. 5.
328 Ibid., para. 2.
329 4 July 2002, BVerwG 2 C 21.01.
330 Article 4 provides: ‘‘(1) Freedom of faith and of conscience, and freedom to profess a religious or philosophical
creed, shall be inviolable. (2) The undisturbed practice of religion shall be guaranteed’’.
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Constitutional Court’s rationale, supported by five of the eight judges in its second chamber
(Senat), was that in the absence of any clear, unambiguous regulations in the German states
concerning the wearing of religious symbols in the classroom, the states could not legally ban
qualified teachers, such as Ludin, from holding this public office. At the same time, the
majority noted that, given the increased religious pluralism in German society, there may
indeed be an ‘‘increased potential for possible conflicts in schools’’. Therefore, the majority
concluded that there might be both good reasons for a stricter interpretation of the neutrality
principle when it comes to schools and, in particular, a need for rules governing the
‘‘outward appearance’’ (a¨ub eres Auftreten) of instructors.331 The majority stressed,
however, that decisions regarding which particular rules should be enacted in order to
keep ‘‘religious peace’’ (religio¨sen Frieden) in schools, as well as the content of specific
rules that might eventually govern the suitability (Eignung) of a teacher for the teaching profession in this changed social environment, were not to be taken by public school authorities
themselves. Rather, the majority stressed, such a decision could be taken only by the ‘‘democratically legitimized regional legislator’’.332 The court concluded that the headscarf per se
could not simply be considered as merely a sign of suppression of women or a symbol of
female submission, and noted that there was insufficient empirical data to indicate any
harmful influence of the headscarf on children.333 The Court also affirmed that the religious
dress of a teacher cannot be attributed to the State if the State did not order or require this
dress.334
101. Although the majority judgment permitted the wearing of the Islamic headscarf in
this case, it is notable that the basis of this ‘‘success’’ was based on the absence of a sufficiently
clear legislation concerning the wearing of religious attire and symbols (including the hijab )
in educational institutions. The court avoided making a general and clear pronouncement
that, as a matter of constitutional law, a public school teacher whose religious beliefs
require her to wear an Islamic headscarf is entitled to do so in the classroom. As the court
declared, future legislation concerning headscarves in public schools would represent ‘‘a permissible restriction of the freedom of religion’’ that conforms to Article 9 of the ECHR.335
102. Following this judgment, several Germany states including Baden-Wu¨rttemberg and
(strongly Catholic) Bavaria passed legislation banning Muslim teachers from wearing headscarves.336 Similar legislation banning wearing headscarves by teachers has been introduced
in Saarland and Lower Saxony, yet Christian and Jewish symbols are excluded from the
bans.337 Such legislation which treats members of certain ( popular) religious groups differently from otherwise similarly situated members of other (less popular) religious groups fails
331 Ludin Judgment, above n. 324, para. 64.
332 Ibid., para. 66.
333 Ibid., paras. 50 and 52.
334 Ibid., para. 54.
335 Ibid., para. 65.
336 See C. Langenfeld and S. Mohsen, Germany: The Teacher Headscarf Case, 3 IJCL (2005), 86 –94.
337 EUMC, above n. 5, 42.
Ssenyonjo, The Islamic Veil 707
to treat all religions equally and does not contribute to the child’s understanding of the right
to freedom of religion and to the development of an attitude of tolerance.338 Therefore, the
majority opinion further opened the door for new regional laws concerning the relationship
between state neutrality and freedom of religion. Besides, the three-judge minority considered the Islamic headscarf to be a symbol of the subjugation of women and political
Islamism, which implied that a State had a duty to protect women against Islamic headscarves (so that they can enjoy equality with men) and to regulate the wearing of Islamic
headscarves (so as to protect society against Islamic fundamentalism). For the minority,
the headscarf could be banned without further legislative provision. The majority judgment
of the ECtHR in the S¸ahin case appears to support the view that the wearing of the hijab is
against principles of secularism and equality.339 In June 2004, the Germany Federal Administrative Court confirmed the right to ban the Islamic headscarf along with any other religious symbol, noting that unequal treatment of religiously motivated clothing would not
be in accordance with the Constitution (Article 3).340 Thus, Germany’s religious female
Muslims who want to become public school teachers find themselves in the unenviable position of either having to bury their professional aspirations or having to compromise and
abandon their religious practices.341
IV. Conclusion
103. What then is the conclusion? Does the prohibition of female Muslim pupils or students
from wearing the Islamic dress, or any feature of the Islamic dress, while at State schools
amount to an unjustifiable violation of the right to education and/or an unjustifiable violation of freedom to manifest one’s religion or beliefs? And if a State (or a non-State actor)
prohibits a female Muslim teacher, who wishes to wear any feature of the Islamic dress as
a religious duty, from wearing such a dress while at a State school, does this amount to a
violation of the teacher’s right to work and/or the teacher’s right to manifest freedom of religion or belief?
104. Rational answers to these questions require an understanding of the complexities of
freedom of religion in schools. It is crucial to recall that freedom to manifest one’s religion or
beliefs (by dress or otherwise) is not absolute and may, even in the educational or workplace
context, be subject to limitations, which are ‘‘prescribed by law’’ and are ‘‘necessary’’ to
protect public safety, order, health, morals, or the fundamental rights and freedoms of
338 For a discussion, see R. Seth Fogel, Headscarves in Germany Public Schools: Religious Minorities are Welcome
in Germany, Unless – God Forbid – They are Religious, 51 New York Law School LR (2006 –2007), 619 –
653; CRC Committee, Concluding Observations: Germany, UN Doc. CRC/C/15/Add.226 (26 February
2004), para. 30.
339 See the GC Judgment, above n. 15, para. 166.
340 Germany/BVerwG/2C 45.03 (24 June 2004). Article 3 guarantees equality before the law in these terms: ‘‘(1)
All persons shall be equal before the law. (2) Men and women shall have equal rights. . .’’.
341 Fogel, above n. 338, 653.
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others.342 However, to prevent a person from wearing religious clothing (like the Islamic
dress) in public or private schools or institutions, in the absence of any justification, may constitute a violation of Article 18(2) ICCPR which prohibits any coercion that would impair
the individual’s freedom to have or adopt a religion.343 It may also constitute a violation of
the pupil/student right to education or the teacher’s right to work depending on the context.
105. However, the cases considered in this article (including Leyla S¸ahin v. Turkey; Dahlab
v. Switzerland; Begum, Azmi and Ludin cases) all indicate that despite human rights arguments, limitations on the different forms of the Islamic dress in schools, whether by
pupils, students or teachers, are capable of justification. It is striking to note that inequality
in the enjoyment of rights by women throughout the world is deeply embedded in tradition,
history and culture, including religious attitudes.344 Therefore, States ‘‘should ensure that
traditional, historical, religious or cultural attitudes are not used to justify violations of
women’s right to equality before the law and to equal enjoyment of all [human]
rights’’.345 It has been argued that the Islamic dress code which requires women to
conceal all but their face and hands, while leaving men much free to decide what they
will wear, does not treat them equally.346 On the strength of this view, it is claimed that
the Islamic dress in its different forms (khimar, jilbab, burka, and niqab ) perpetuates
inequality between the sexes and that it is ‘‘a symbol of oppression and not a free choice;
it is sexist; it fosters extremism [since it is allegedly linked to holy war – ‘jihadist terrorism’];
and it separates Muslim women’’ by creating a barrier between veiling Muslim women and
other people (including non-veiling Muslims, non-Muslims and men generally).347
106. It is the view of this author that while guarantees of freedom of religion such as
Article 18 of the ICCPR ‘‘may not be relied upon to justify discrimination against
women by reference to freedom of thought, conscience and religion’’,348 merely wearing
an Islamic dress cannot be associated with discrimination against women or with fundamentalism.349 As a matter of principle, unless it is ‘‘necessary’’ to protect a legitimate aim as stated
under the relevant human rights treaties (e.g. Article 18(3) ICCPR and Article 9 ECHR),
female Muslims who freely choose to wear any feature of the Islamic dress in public (including in schools) should not be generally coerced to abandon it because some female Muslims
from the age of puberty consider such a dress to be a religious requirement or as a tool of
their religious identity, freedom, empowerment and emancipation. Since human rights
342 ICCPR, Article 18(3). As observed by the HRC ‘‘paragraph 3 of article 18 is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if they would be allowed as restrictions to other rights
protected in the Covenant, such as national security’’. See HRC, General Comment 22, above n. 24, para. 8.
343 Hudoyberganova v. Uzbekistan, above n. 15, para. 6.2.
344 HRC, General Comment 28, above n. 311, para. 5.
345 Ibid.
346 Begum case, above n. 15, para. 95.
347 See A.K. Wing and M.N. Smith, Critical Race Feminism Lifts the Veil?: Muslim Women, France, and the
Headscarf Ban, 39 U.C. Davis LR (2006), 743 –785, at 767.
348 HRC, General Comment 28, above n. 311, para. 21.
349 Tulkens Dissent, above n. 77, para. 10.
Ssenyonjo, The Islamic Veil 709
treaties protect the values of tolerance and broadmindedness, adult women should not be
refrained from choosing for themselves what they prefer to wear; and there is no necessary
connection between religious dress and issues such as terrorism or extremism. Just because
some extremists in some States supported the wearing of headscarves like in Turkey does
not necessarily make a particular individual wearing the headscarf an extremist.
107. The personal interest of Muslim women ( pupils, students and teachers) in exercising
the right to freedom of religion and to manifest their religion by wearing the Islamic dress
cannot, therefore, be wholly absorbed by the public interest in fighting extremism.350
Generally, principles of pluralism, respect for the rights of others, equality and nondiscrimination should permit female Muslim pupils and students who wish to wear the
Islamic dress in private or public, including in schools, to do so without unjustifiable interference by the State or other actors.
108. With respect to Muslim female teachers wearing (or who wish to wear), the Islamic
dress at school, it is important to recall, as noted above, that historically, women have been
assigned to the private or domestic sphere, associated with reproduction and the raising of
children, activities treated as inferior.351 In contrast, men historically have both dominated
public life (which is respected and honoured) and exercised the power to confine and subordinate women within the private sphere.352 In all nations, cultural traditions and religious beliefs have played a part in confining women to the private spheres of activity
and excluding them from active participation in public life while favouring men.353
Respecting the right of Muslim women teachers who wish to wear the Islamic dress in educational institutions (and elsewhere) would enhance their participation in public life.
Article 3 of the ICESCR prescribes that States parties undertake to ‘‘ensure the equal
right of men and women to the enjoyment of all economic, social and cultural rights’’
including the right to work.354 In the absence of sufficient empirical evidence between
the teacher’s Islamic dress and pupils, the wearing of the Islamic dress should not constitute an obstacle to the employment of teachers and should not constitute justification for
loss of employment or promotion.
109. Consequently, emphasis should be placed on the link between the fact that girls and
women often have less access to education than men. Owing to discrimination against girls
and women in most societies, their access to education remains constrained.355 Worldwide,
by 1999, there were still nearly 100 million children of primary school age who were not
350 Ibid.
351 Committee on the Elimination of Discrimination against Women, General Recommendation No. 23, (16th
session, 1997), para. 8 (www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom23).
352 Ibid. Public life extends to a broad range of activity outside the private and domestic sphere.
353 Ibid., para. 10.
354 See CESCR, General Comment 18: The Equal Right of Men and Women to the Enjoyment of all Economic,
Social and Cultural Rights, E/C.12/2005/4 (11 August 2005).
355 UNESCO, Education for All Global Monitoring Report 2003/4, UNESCO, Paris, (2003), Chapter 2. By
2000, two-thirds of the 860 illiterate million adults were women. Fifty-seven per cent of the 104 million children not in school were girls. The number of out-of-school girls was highest in Sub-Saharan Africa (23 million),
followed by South and West Asia (21 million).
710
Chinese JIL (2007)
enrolled in primary schools, and the quality of education remained a major issue.356
Although between 1999 and 2004 the number of primary school age children who were
not enrolled in school fell to 77 million, this is still unacceptably very high.357 The children
most likely to be out of school and to drop out live in rural areas and come from the poorest
households, mainly girls.358
110. General bans on the Islamic dress in schools might lead to further discrimination
against girls and women in education. In States where Muslims are the ethnic, racial and religious minorities, this is likely to lead to the ‘‘intersectionality’’ of racial, sex and religious
discrimination. As Freedman observed:
In the case of the headscarf, the exclusion of Muslim women from school and other
public spaces places them further from arenas of debate, discussion and participation,
and thus pushes a real resolution of this issue even further beyond reach.359
111. Although it is arguable that female Muslim students who wish to wear the Islamic dress
at school may join private Islamic schools, it is essential to recognize that separate schools are
never equal.360 The hijab should not be used to deny girls/women education. In the words
of Sheikh Ahmad Kutty:
Hijab, when understood in the proper Islamic context, can never be associated with
oppression of women, for women during the time of the Prophet ( peace and blessings be upon him) never stayed behind anyone; they were assertive and participated
fully in society.361
112. Therefore, Islamic dress limitations in schools (whether by pupils/students or teachers)
should be considered on a case-by-case basis and take fully into account the human rights
aspects of those wearing or who wish to wear the Islamic dress as a religious practice while
taking into account the rights of others that may be at stake in the situation concerned. If
the life choices of Muslim women are a concern, it is the background—social, economic,
cultural, legal and political conditions—in which they live that need to be addressed,
rather than the general ban of the Islamic dress or the compulsory wearing of such a
dress, so as to create favourable conditions in which autonomous and meaningful choices
can be made.
356 UNESCO, Education for All Global Monitoring Report 2006, UNESCO, Paris, (2005), 41.
357 UNESCO, Education for All Global Monitoring Report 2007, UNESCO, Paris, (2006), Chapter 2.
358 Ibid. noting that: ‘‘There are now 94 girls in primary school for every 100 boys’’.
359 J. Freedman, Women, Islam and Rights in Europe: Beyond a Universality/Culturalist Dichotomy, 33 Review of
International Studies (2007), 29 –44, at 44. See also H. Seckinelgin, Civil Society Between the State and
Society: Turkish Women with Muslim Headscarves?, 26(4) Critical Social Policy (2006), 748 –769, at 766.
360 US Supreme Court, Brown v. Board of Education of Topeka 347 U.S. 483 (1954) holding that separate but
equal schooling system is inherently unequal in the context of public education.
361 A. Kutty, Hijab in Focus: Why? (29 November 2006) (www.islamonline.net/servlet/Satellite?pagename¼
IslamOnline-English-Ask_Scholar/FatwaE/FatwaE&cid¼1163656956002).
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