Europe: Unveiling of religious discrimination

On June 30 this year, the Strasbourg-based European Court of Human Rights (ECHR) in Leyla Sahin v. Turkey unanimously ruled that the university’s headscarf ban did not infringe the European Convention on Human Rights.
On May 31, 2000, police dragged Nuray Bezirgan and three other students from their classroom in the state-run University of Istanbul.
Nuray was initially sentenced to six months in jail for “obstructing the education of others”, but this was reduced to a fine on appeal. Her crime? She was wearing a headscarf during an examination.

On June 30 this year, the Strasbourg-based European Court of Human Rights (ECHR) in Leyla Sahin v. Turkey unanimously ruled that the university’s headscarf ban did not infringe the European Convention on Human Rights.

Much of the media coverage prefaced the decision as an endorsement that a ban on the headscarf is a valid way to counter Islamic fundamentalism. Turkey is a member of the Council of Europe of which the ECHR is part. Turkey is not yet a member of the European Union.

Leyla who wears a headscarf, was a fifth year medical student when she filed her case in 1998. She left Turkey in 1999 to continue her studies at the University of Vienna, which presumably had no restrictions on her manner of dress.

Turkey was pronounced a secular state by Kemal Ataturk (1919-1938), the founding father of modern Turkey. Turkey has been under a military junta since 1980. The military has declared Islamic fundamentalism a threat to national security.

The headscarf ban is part of a 1981 code which prohibits women students from wearing miniskirts and jeans. However the prohibition is applied arbitrarily to the headscarf alone. In 1997 the military issued an ultimatum to the government to implement the headscarf ban without exception.

When in 1998, the University of Istanbul forbade students with beards and students with headscarves from attending lectures, courses and tutorials, Nur Satel, the deputy dean of Istanbul University said: “The headscarf is not only a way of dressing, it has been used as a symbol of Islam, a flag of fundamentalism.”

It is reported that, between 1998 to 2000, some 25,000 women have been barred from college campuses in Turkey because they refused to remove their headscarves. Several hundred government employees were fired, dismissed or transferred for the same reason.

The government ban on headscarves was extended to Muslim religious schools. Even private universities uphold this ban.

Extremist political movements

Turkey's ruling Justice and Development Party (AKP), which won the polls in November 2002, had considered trying to end the headscarf ban. This was placed on hold when the military opposed it.

Former prime minister Erbakan had to resign in June 1997, when the military reportedly engineered a situation which ended with the closure of his Refah party. Erbakan was seen as ‘religiously devout’.

In arriving at its decision, the ECHR in Leyla's case, said that it “has not overlooked the fact that there are extremist political movements in Turkey that are trying to impose on the whole of society the religious symbols and their idea of a society based on religious values”.

The judgment did not record the evidence tendered of the existence of extremist political movements except for a reference to the Islamist Refah party which won at the polls in 1996.

“The ambivalence displayed by the leaders of the Refah Partisi...over the attachment to democratic values, and their advocacy of a plurality of legal systems functioning according to different religious rules for each religious community was perceived in Turkish society as a genuine threat to republican values and civil peace,” is said.

The court recognised that “the principle of secularism was surely one of the founding principles of the Turkish state”, and “safeguarding this principle can be considered necessary for the protection of the democratic system in Turkey”.

It further said: “It must be borne in mind the impact which wearing such a symbol, which is presented or perceived as a religious duty, may have on those who choose not to wear it.”

The issues at stake “include the protection of the rights and freedoms of others and the maintenance of public order”.

We may be familiar with these arguments which make their way in our public discourse on religion, rights and Muslim dress. Our own courts have decided at least two cases on dress.

One involved Halimatussaadiah, a Muslim civil servant who wore a long loose coat with only her eyes uncovered, a kind of jilbab. The other case referred to as Meor Atiqulrahman involved two Muslim minors in a public school who were disallowed the serban. Both the jilbab and the serban are variations of what Malaysian Muslims perceive as specifically ‘Muslim dress’.

Failure of state

The ECHR decision is probably welcomed by some states in the European Union. France the laic state, has already passed a law this year to ban the “overt religious symbols in public schools” which included the headscarf. Cases have been filed in Germany which prevent teachers from wearing headscarves.

The original draft of the French law banned only the headscarf or hijab. Due to civil society concerns on discrimination against Muslims, this law was extended in the name of equality to “clothes and signs which conspicuously show membership of a religion”. Although the ban purports to advance equality, it sanctions religious discrimination.

Some commentators view the French law as targeting Muslims and Jews (wearing skullcaps) as Christians do not usually put on an oversize or ostentatious cross around their necks, unless they are stage performers like Esther (aka Madonna).

The ECHR decision narrows even this understanding. The headscarf is no longer a conspicuous sign of membership to a religion, it is not part of freedom of religion. It is fundamentalism and must be excluded from public life.

It is ironic that the ECHR purports to defend a kind of secularism that no longer sits well in the liberal democracies in North America and Europe, the actions of their particular governments notwithstanding.

The Washington-based Human Rights Watch (HRW) notes that protection of religious freedom is consistent with secularism in state institutions. Policies requiring or forbidding students to wear visible religious dress is a failure in the duty of states to avoid coercion in matters of religious conscience. HRW believes the headscarf ban in Turkey is an unwarranted infringement of the right to religious practice.

In June this year, HRW submitted a 47-page memorandum to the government of Turkey. This focused on academic freedom in higher education and access to education for women who wear the headscarf. The memorandum presented a different way the ECHR could go on the issue.

Turkey is signatory to two very important international human rights instruments namely the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights. The headscarf ban runs counter to both covenants.

Discriminatory applications

The United Nations Human Rights Committee on July 20, 1993 clarified the meaning of Article 18 of the ICCPR on freedom of thought, conscience and religion.

“'The observance and practice of religion or belief may include the not only ceremonial acts but also such the wearing of distinctive clothing or headcoverings,” it said

As such, “Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner.”

HRW argued that the limitation of “protection of health and morals” or the “prevention of disorder and crime” cannot be invoked as a justification for the ban applied to students. This so, because the headscarf is worn very widely in all parts of Turkey without giving rise to disturbance. It has been worn widely since the 1990s in state universities without causing unrest there.

HRW proposes dialogue in certain contexts: “If students do not respect their fellows’ religious or political beliefs or lack of beliefs, it is the responsibility of the government, police and universities to ensure that they express any objections within the bounds of the law.

“It is not the responsibility of students who feel religiously obliged to wear the headscarf to maintain harmony by removing themselves from the campus altogether.”

Dialogue is always prudent. However, I face a quiet exasperation when dialogue becomes an embroilment among politicians, women’s rights groups or writers in a tussle of which view of dress or which interpretation (of the text) purports to be the moderate, extremist, fundamental, enlightened or even ‘true’, the real McCoy; ‘us’ against ‘them’. While dialogue is prudent, where the press is controlled, views that go to press depends on government patronage.

In one incident in 2002, a women's rights activist from Malaysia, at the invitation of the Institute of Southeast Asian Studies in Singapore spoke about Muslim women’s rights and gave an interview to the Straits Times (ST). She intimated that the headscarf is not a requirement.

This was at the time of the campaign of the headscarf ban in Singapore schools. This was a difficult time for a section of the 14 percent minority Malay-Muslim community in an assertion of their cultural rights and identity.

The campaigners against the ban on headscarves in schools were already perceived by government elements as “extremists”. Like Malaysia, the island republic’s administrators have no qualms in using preventive detention laws like the Internal Security Act over whom the state perceives to be a ‘security threat’.

A Muslim community leader who was a former MP of the PAP-led Singapore objected to the interview. His letter was not carried by any newspaper in the island city-state. Both states across the causeway have similar controls on press freedom. For a short spell however, Malaysian press did their fair exchanges on the headscarf ban in Singapore.

The issue of Muslim attire has become extra complicated after the Sept 11, 2001 attacks in the US. Any visible or conspicuous sign of ‘Muslim religiosity’ may be perceived as an extremist threat. This is played out in how some Muslims, especially women choose to dress.

Insiders and outsiders

Malaysian ‘insiders’ and ‘outsiders’ to Islam, know of the contentious nature of the ‘right’ interpretation of textual authorities. It is perhaps more useful to speak about several interpretations depending on the methodology or exegital methods used by the interpreter. These methods themselves are evolving even as the ‘authority’ and scholarship continue to shift among the interpreters; scholars, professionals, activists and even novelists and journalists.

The point to be made is that these efforts will continue to play a role in the public civil life in Malaysia. These voices will continue to influence the political and public behaviour of Muslims. However, it must be emphasised that the meaning and implementation of what Muslims perceive to be the word of the text, is always the product of human interpretation and action in specific historical contexts (An Naim, 2004).

Without a doubt, judges and policy makers face a formidable quandary where contentious issues of religion are involved. The ambivalence is understandable. We already see this happening in our civil courts in issues of Muslim attire, freedom of religion and education, conversions of minors to Islam, conversions of Muslims out of Islam and deviationism.

The ECHR in Leyla’s case got out of the muddle, so to speak, by noting that the secular state will not invoke religious conviction when performing its legislative role. It followed the reasoning of a Turkish constitutional court on a related matter.

My contention is the decision need not have been based on the secular-separation of state and religion divide. In any case, as rightly pointed out in the HRW memorandum, the principle of secularism protects the freedom of religion and that includes the freedom to dress according to religious beliefs. Secularism protects human rights.

The crux is whether a particular rule coerces. The point that requires to be upheld in a court of law must be the avoidance of coercion in matters of religious conscience.

As an example, the International Islamic University, Malaysia (IIUM) has a dress code which it considers as ‘Islamic dress’. IIUM was established in 1983 to ‘Islamise’ education and to train ‘Islamic-conscious’ civil servants for the state. It was established as part of a state-led Islamisation programme of the state.

Unlike the University of Istanbul which it bans headscarves (seen as Muslim dress), IIUM may discipline (which includes expulsion) non-observers of the dress code regardless of whether they are Muslims or not. The fact of non-compliance can be severe in both situations.

Turkey professes to be a secular state where all manner of religious expression is banished into the private sphere (Turkey’s definition of its secularism), and Malaysia professes to be secular with Islamic governance. Even if Malaysia is an ‘Islamic state’, these are factors which should have little bearing on how we perceive, define and rule out coercion and discrimination and protect human rights.

In the synergy and interdependence of religion, secularism and human rights, policies requiring or forbidding students to wear visible religious dress marks a failure in the duty of the state to avoid coercion in matters of religious conscience.

Reference: An Naim, Abdullahi A. (2004), The Future of the Shari'ah Project (a work in progress); manuscript with author.
by Salbiah Ahmad, published in on 20 July 2004

SALBIAH AHMAD is a lawyer and an independent researcher. MALAYA! as the name for this column was inspired by the meaning of 'Malaya' in Tagalog which means freedom. The events at the end of 1998 in KL offer a new inspiration. MALAYA! takes o­n the process of reclaiming the many facets of independence.