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Aktif Makale Relıgıous Symbols – Hıjab (Headscarf) Controversy And Internatıonal Human Rıghts Law

Yazan : Av.Abdullah Umran Ekinci [Yazarla İletişim]

Makale Özeti
Yazarın Notu
2004-2005 University of Aberdeen Scotland, LLM,Dissertation.



The labour immigration of Muslims from North Africa, South Asia and Turkey to France, Britain and Germany in the1960’s and 1970’s was a determining factor for the multicultural transformation of these West European societies.[1] However the immigration has caused many problems concerning the integration of the immigrants to social and political life of their host communities. One of the major areas from where the tension has stemmed from is religion and the persistence of the migrant communities in demanding religious rights.
Since the acceptance of the concept of secularism in the early beginning of the 19th century in France the public schools were declared secular and free in order to make the education available to all children.[2] However, during that time there was not a significant Muslim community from other religious communities in France.[3] Nevertheless, since then the demographic structure of the population in Western Europe has changed significantly due to the large flux of immigrants from the underdeveloped countries. Consequently, nowadays, one cannot deny the multicultural character of the public schools in France, Germany and United Kingdom. The schools consist of students from various ethnic, religious and cultural backgrounds.[4] This cultural and religious diversity has provoked widespread public debates over educational policies. One could well say that “Muslims in Europe whose children constitute the second generation are now being studied increasingly from a religious, rather than a migrant labour, point of view.”[5]

The problems concerning religious affiliation are not subject to discussions only in Western Europe but surprisingly also in Turkey which has a dominant Muslim population. The interesting point in this context is that Turkey as an inheritor of the Ottoman Empire coming from a strong Islamic tradition is nowadays restricting the religious manifestation in public areas. One could predict that in the other Western countries such problems occurs due to immigration; however in Turkey it is rather surprising.
While the ban on religious symbols includes Christian cross, Jewish skullcaps and Sikh turbans in France, the ban is limited to Islamic headscarf in Turkey. Only the Muslim students are facing restrictions although it has a Christian and Jewish population, albeit in small minority. One could well say that this raises the question of discrimination between the particular citizens belonging to different faiths.
In searching source of such developments, indeed, the political concerns have put the Islam at the center of the debates. The debates are mostly on the headscarf, not on other insignias. In this context attention in this study will be paid to the cases from three different countries: firstly, the case of Ferestha Ludin from Germany, secondly the case of Leyla Sahin from Turkey and finally the recent case of Shabina Begum from the United Kingdom. These three women have become famous in their countries while they were struggling in courts for their right to manifest their religious freedom.
It is a fact that in France and Turkey, the advocates of the ban aim to safeguard the secularism. The interpretation of secularism differs among the states; this issue will be discussed in more detail. Nevertheless, modern world continues to struggle to find an appropriate balance between the religion and secularism. To emphasize the importance of the issue by a simple statistic, between 1989 and 1998 a total of 1,261 articles were gathered from the French press on the Islamic headscarf controversy only in France.[6] One could predict that the problem of headscarf is going to occupy the international agenda and to be subjected to deeper debates, as the headscarf is not just a piece of fabric representing a cultural tradition but it is the way how to manifest a particular belief. Moreover, it raises the question of how multicultural Europe will tolerate Islam with its values challenging the Western Culture. In his study of Islam in France, Bruno Etienne a French professor of political science, states that “the obstacle that Islam represents is as much political as religious, because Islam refuses secularism.”[7]
Consequently recent developments in Turkey, United Kingdom, Germany and France offer an excellent case study for those seeking answers to the following questions: How Europe will accommodate religious diversity particularly Islamic headscarves?[8]
Is the ban on religious symbols discriminatory on sexual and religious grounds and would it prevent Muslim girls from attending schools? To what extent religious liberty, particularly the freedom of religious manifestation can be extended in a secular state? How far religion and secularism can be reconciled? Is this ban going to serve the secularism or to undermine multiculturalism and integration of diverse societies?
This reseach provides a context for addressing these questions by providing an overview on interpretation of secularism, religious liberty and state neutrality. In addition, it looks at the role of religious symbols in public life with the use of relevant case studies from particular countries. Furthermore, it aims to evaluate the religious symbols in the context of international human rights law. Moreover, it comes to conclusion that the headscarf ban would not serve to safeguard secularism, but it will serve to disintegration of multicultural societies. The religious symbols and particularly headscarf should be treated with tolerance within pluralistic values. Headscarf as a religious symbol should be accepted as a religious necessity for the practitioner and expression of their religious freedom, which is guaranteed under international law of human rights.


One cannot well define the problem of religious freedom without referring to the concept of secularism. Secularism is a theory based on the idea that religion should not be involved with social and political life of a state.[9] Alternatively, it can be defined as a concept advocating a separation of the state and religious rules.[10] In France and other French speaking countries a prevailing notion of the separation of Church and State and the isolation of religious affairs from government activities is defined by laïcité.[11] Laïcité is related to secularism, but it does not imply a hostility towards religious beliefs.[12] Any state interference aiming to design the religious area should be considered as politically motivated and hostile unless it is proved that these religious activities are against public interests. A free exercise of religious liberty must be ensured in order to guarantee the freedom of religious manifestation.[13] This assumption suggests that “every religious movement must be the master of its own activities, possessing the right to organize itself freelly.”[14] One may well agree with this opinion. Indeed, a state interference into religious activities would always have a potential to undermine the basic principles of the religious freedom.

1. laicisme

Radical secularism can be defined as the ill-separation of state and religion. It aims to deny any public manifestation of religion. The strict ban on the manifestation of religious symbols should also be considered as a radical form of secularism. In this context one should mention the difference of ‘laicite’ and ‘laicisme’. A hostile implementation of this separation should be defined as laicisme.[15] However, due to its hostility, this concept can hardly be accepted. In contrast, it is suggested that a border between religious freedom and secularism should not be drown very strictly .The relation should be based on a soft and homogeneous basis, as it is in some constitutions where the notion of ‘separation’ is replaced by the notion of ‘autonomy and cooperation’. As an example, one can mention Article 16 Section 3 of the 1978 Constitution of Spain which says that “public authorities take into consideration religion of society and maintain the resulting cooperation with the Catholic Church and other religions”.[16] In a similar context, a Hungarian author, Garlicki, indicates that “religious values are considered as constitutional values.”[17] In the 1987 decision of Constitutional Court of Portugal, it was stated that the state obligation is not only to allow the operation of particular religions but that the state is obliged to cooperate with such religions as “religious needs have become a legally recognized right that the state must ensure”.[18] In this context, one could agree that religious values including religious symbols shall undoubtedly be recognized as constitutional. Religious insignias can not be isolated from a religion. The strict control of the state on the religious insignias in public would entail a violation of religious freedom which is the oldest of the internationally recognized human rights.[19]

2. State Neutrality

Neutrality means state impartilality towards various exsisting religions and ideologies and it is recommended to be understood as the state observes the principle of freedom and equality.[20] This definition implies that in a neutral state there is plurality of ideologies and religions and cultural traditions of particular societies are not eliminated there.[21] This could be described as a positive secularism where a state respects all religious beliefs on equal basis.
The state should respect the right to manisfestation of a belief of each individual. In this context one cannot deny the relationship between a private life and religion. One could argue that a strict control of the state over the religion would not mean only a breach of religious freedom but also a breach of the right to private life which is guaranteed by Article 8 of European Convention on Human Rights.[22] Therefore religious freedom is a fundamental individual freedom which can only be subject to interference under the concept of public interest.
The interpretation of the term ‘public interest’ determines borders between restrictions and individual freedom. What should be considered as ‘public interest’ and what should not? How could it be justified that religious symbols are against ‘public interest’? “A state can demonstrate that its actions were in the interest of public order or morals, the important question is whether the restriction is proportionate to the compelling state interest pursued and whether it is applied with a discriminatory purpose or in a discriminatory manner”.[23] In order to assess the question of necessity one can mention several conventions of International Labor Organization.[24] For instance, Convention No 122 concerning Employment Policy emphasises that “there is freedom of choice of employment and the fullest possible opportunity for each worker to qualify for, and to use his skills and endowments in, a job for which he is well suited, irrespective of …sex, religion.”[25] Furthermore, Convention No.111 concerning Discrimination in Respect of Employment and Occupation prohibits, as a general rule, “any distinction, exclusion or preference made on the basis of …sex, religion …which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.” [26] It could be argued that any discrimination based on religion or gender is not compatible with the general rules set out in the above mentioned conventions.
One could conclude that the limitations in public sphere which a woman faces because of her religious identity are highly discriminatory and restrictive. Such discriminatory regulations cause isolation of the women who wear headscarf or any other religious insignia and exclude her from an active participation in public life. The headscarf ban is discriminatory in nature, as only the woman has to cover her head, not the man. Moreover, the principle of state neutrality should be interpreted as a guarantee for the protection of the woman against religious and gender-based discrimination. The state should avoid arbitrary restrictions, which cannot be justified by principle of necessity. The goodwill of the public authorities is essential to deal with problems concerning different religious identities. The state is obliged to train its servants to serve on equal and neutral basis which is essential for a democratic society.


1. Religious symbols – definitions

Each religion has its own religious symbols. At centre of the debate is mostly the Muslim headscarf. For many Muslim women wearing a headscarf is not only a form of religious manifestation but it is their religious obligation. Hijab (headscarf) is a word used in the Islamic terminology in order to describe the practice of dressing modestly, which all Muslims women after the age of puberty are ordered to do by their holy book, the Quran:[27]
"Say to the believing man that they should lower their gaze and guard their modesty; that will make for greater purity for them; and Allah is well acquainted with all that they do. And say to the believing women that they should lower their gaze and guard their modesty; and that they should not display their beauty and ornaments except what must ordinarily appear thereof; that they should draw their veils over their bosoms and not display their beauty except to their husbands..." (Qur'an 24:30-31)
“O Prophet, tell your wives and daughters and the believing women to draw their outer garments around them (when they go out or are among men). That is better in order that they may be known (to be Muslims) and not annoyed..." (Qur'an 33:59)
The above cited verses from the Qur'an imply two main injunctions:
  • A woman is not allowed to show her beauty to a man other from her father, brothers and husband, and
  • The headscarf should cover her hair, the neck and the bosom.[28]
For the practicing Muslim woman it is clear that covering is not just a symbol but the faith itself. This religious symbol cannot be isolated from Islam.

On the other hand Cross is a main insignia of Christianity symbolizing the crucifixion.[29]
Kippah is a round cloth cap worn by the Jewish men on head.[30]
Apart the above mentioned insignias there are several others which belong to different religions, such as Sikh turban or Buddhist images.

2. Secularism and France

Since 1958 the French Republic is a secular republic.[31] A radical separation of state and church could be observed in France for the last one hundred years.[32]
For many years France had been a very tolerant country towards religious insignia, despite for its radical secularims. Schools did not object students wearing symbols of their various religions such as Christian student wearing a cross or a Jewish boy wearing a kippah.
However, the situation started to change when in September 1989 three Muslim girls were temporarily barred by officials from attending a public school, because they insisted on wearing Islamic head scarves (hijab).[33] Following this incident the highest French Administrative Court, the Conseil d’Etat (the Council of State) decided whether schoolchildren should be allowed to wear religious insignias in public schools. The debates focused on whether religious insignias in public are compatible with the principle of laicite. The Conseil d’Etat hold that
“according to the recognized constitutional and legislative texts, as well as the international obligations of France, the principle of laicite in state education … requires that the teacing be coducted with respect for the principle of neutrality by the teachers and their programs on the one hand, and with respect for the freedom of consience of the students on the other. Such freedom for the students includes the right to express and manifest their religious beliefs inside the schools, while respecting pluralism and the freedoms of others. The wearing of signs by students in which they wish to express their membership in a religion is not by itself incompatible with the principle of laicite[34]
This decision appears to be entirely correct as it promotes the idea of respect for the religious freedom of the students guaranteed by the 1958 Constitution as well as by the international law. The decision clearly indicated that laicite is fully compatible with expression of faith by wearing religious symbols. Moreover, Council d’Etat recognized that “allowing students to wear such identifiers is merely an aspect of the general principle of secularism and neutrality of state.”[35] Council d’Etat concluded that “these principles require the state to respect the students liberty of consience, meaning that the state should abolish all discrimination by public schools based on their students religious convictions or beliefs.”[36] One may conclude that this decision is supporting the notion of ‘soft’ secularism. Only soft secular concept can lead to the reconciliation of laicite and religion. The aggressive and strict approaches will necessarily entail religious intolerancy.
However, the decision of the Counsil d’Etat distinguished between the students with provocative behaviour whose aim was to influence others and the students who were wearing religious insignia purely because of their religious belief.[37] The subjectivity, uncertainty and different applications by school authorities forced the government to focus on the problem.
After 1989 there were few attempts to restrict the wearing of headscarfs in public schools by administrative authorities. The Conseil d’Etat while deciding on these cases took the position that the attempted bans were mostly inappropriate and arbitrary.
However, the headscarf continued to be in the centre of discussions in France. In 2004 a politically influenced decision of the government turned the situation against the free manifestation of religious belief in public schools. In March 2004, President Jacques Chirac signed a law which completely banned Muslim women from wearing headscarfs in public schools.[38] It was reported that following the ban five Muslim girls have been excluded from schools in Mulhose and Caen after they refused to remove their headscarfs.[39]
This new law fulfilled expectations of certain anti-immigrant and racist groups in the French society. However, it is very surprising that France as the historical pioneer of human rights ended up as the opponent of the freedom of manifestation of religious belief. One would expect that France will be more tolerant towards cultural and religious diversity.
One could well argue that the decision of the Council d’Etat of September 1989 was very supportive of human rights and drew a perfect balance between competing interests of citizens. The individuals who are covering their heads because of their pure belief should be differentiated from those who are using this as a propaganda. It is, indeed, unacceptable to victimise the sincere believers. The recent law is not supportive of cultural integration, but extremely separatist. One could well say that the balance is not appropriate. The Muslims in France feel to be the target of the recent law more than any other religious community. It is suggested that historical development of the religion and its impact on the communities must necessarily be taken into consideration as necessity while adopting state policies on religious symbols.

The Background of the Law

The adoption of the new law was preceded by a long discussion. In July 2003 President Jacques Chirac appointed a commission (so-called Stasi Commission) to examine how the principle of laicite should be applied in practice.[40] The centre of the discussion was whether or not Muslim girls should be permitted to wear headscarfs in public schools.[41] The Commission concluded that the headscarf in the public schools was not compatible with the principle of laicite and that a new law shall be enacted.[42] The Commission took the principle of public order as a justification for its recommendations. It was concluded that behind the wearing of Islamic headscarfs there was “a conspiracy to challenge the Republic”.[43]
The justification for the ban was that, according to the Commission, some Muslim girls were not wearing headscarfs willingly but they were forced by their families or communities.[44] Another reason was that it was necessary to bring some certainty to this issue in order to help school authorities to avoid confusion when deciding on these cases.[45]
One could, however, well question whether these arguments are not constructed on a subjective basis. Did the Commission have any evidence, which could prove its findings? What is the percentage of the girls wearing the religious attire by force and the girls wearing the religious attire willingly? Of course, it may happen that a girl is forced to wear the hedscarf by her family; however, could it be used as a justification for putting at a disadvantage the women who covers her head willingly? One can therefore conclude that the Commission’s report is not scientific nor is objective.
The initial task of the Commission was to find out how laicite can better be applied in public life; however without any deeper investigation and systematic data the Commission came to a decision that the only practical solution is to ban the religious attire in public schools. The only evidence on the coercion in relation to headscarfs, which the Commission provided was from “unnamed witnesses, some of whom were interviewed behind closed doors.”[46] One could argue that if the Commission was just and correct in its findings the ban should be extended to private schools and other public areas as well.
The assumption of coercion is a very serious allegation against millions of Muslim families living in France and it had to be justified more objectively. In this context one could mention the example of converts to Islam who are undoubtedly covering their heads with their free will.
The Council d’Etat as the highest relevant judicial authority in France had decided that the French Constitution and international law give children “the right to express and manifest religious beliefs inside the schools”.[47] One could argue that the Commission failed to take into consideration these constitutional rights, which had been accepted by the Council d’Etat. A secular state commission can not decide on the theological question what the cross should mean for a Christian or what the headscarf should mean for a Muslim. The Stasi Commision, however, choose to apply a harsh interpretation of laicite what is not compatible with the principle of neutrality. The radical secularist interpretation leads to violation of the right to religious manifestation which is guaranteed under international law of human rights.
One could argue that if the headscarf is to be criticised from the human rights point of view, it should be examined in a wider historical context. Europe should not forget that just fifty years ago the vast majority of women (especially women in rural areas) were covering their heads. The roots of covering head can be traced back to Judaism and early beginnings of the Christianity; one can not find a picture of Virgin Mary without headscarf. The headscarf is thus not related only to East or Islam, but it is deeply rooted in Western and Christian culture as well. In addition, one could mention the example of nuns who are even nowadays in accordance with their religious belief in covering their heads.
In summing, the Stasi Commission failed to examine the historical roots of the headscarf, which can be both traced back to Eastern as well as Western tradition. It should also be stated that these societies are more familiar with the headscarf than with the secularism.

3. Current Problems in Germany

The problem of headscarf dates back to 2003 when Freshta Ludin, the Afgan origined German teacher applied to the German Constitutional Court for her right to be employed in the civil service with her headscarf.[48] Ludin explained that, “although aware of public anxieties about the headscarf, she did not wear it as a political symbol or with the intent to influence her pupils in religious matters; with her hair uncovered in public, she would feel naked, and that to wear the headscarf was for her both a way of expressing her religious conviction as a Muslim woman and expression of her personality.”[49]
The school board in its reply pointed the tensions about the headscarf in German society and said that, “in a state school, the head scarf must be considered a danger to social cohesion and to the pedagogical climate. The headscarf was not merely a private religious symbol but must be understood as a symbol of cultural self-segregation and, thus, as an explicitly political symbol likely to provoke strong reactions of rejection and polarisation. In elementary schools, pupils would be exposed to this symbol at a very early and impressionable age, from which the children would have no possibility of escape”.[50] One could, however, hardly agree with the school board’s justifications. The main reason is that they were not constructed on the principle of religious freedom, but on subjective pedagogical concerns which had not been proved by any evidence. One may well say that the school board advocates the idea of suppression of different cultures, which was applied in the Nazist Germany and in the former communist countries. Undoubtedly, this approach is an example of oppressive state policy which is not willing to tolerate religious manifestation.
The application of the teacher, Ludin, was rejected by Higher Administrative Court as well as by Appellate Federal Administrative Court. The appellate court emphasized that “a public school teacher was regarded by her pupils as a representative of the state, and that the Islamic headscarf as a religious symbol, not merely a cultural tradition. This conflict between the freedom of the teacher, on one hand, and the fundamental rights of students and their parents, on the other, could be resolved by prohibition of the headscarf.”[51]
In this context one could argue how the rights of the teacher would be protected by restricting her employment opportunity as a teacher in public. How will she be integrated into the society as a Muslim woman, when the state is discouraging her to work in public because of her Islamic identity?
However, the Constitutional Court as a last instance decided in favour of the applicant. In its judgement the Constitutional Court held that the school board’s refusal of Ludin’s application was unconstitutional.[52] The Court stressed that the freedom of conscience should be accepted not only as an individual right, but as a principle.[53] At the same time it was accepted that “the state’s involvement in religion is permissible for the purpose of encouraging, protecting or sustaining religious diversity in the wider society and in the schools.[54] In this context one can conclude that the decision of German Constitutional Court has similarities with the decision taken by the French Highest Administrative Court Council d’Etat regarding the same issue in 1989.
From the legal point of view the judgement of the Constitutional Court is based on the following Articles of the German Basic Law. Firstly, it refers to Article 33(2) and (3) of the German Basic Law which guarantees equality for all German citizens regarding civil service employment opportunities:[55]
“Every German shall be equally eligible for any public office according to his aptitude, qualifications, and professional achievements.

Neither the enjoyment of civil and political rights, nor eligibility for public office, nor rights acquired in the public service shall be dependent upon religious affiliation. No one may be disadvantaged by reason of adherence or nonadherence to a particular religious denomination or philosophical creed.”[56]

Secondly, it is based on the principle of the fundamental freedom of religion guaranteed by Article 4 of the German Basic Law (Grundgesetz). [57]
Section I states:
“Freedom of faith and conscience, and fredoom of creed religious or ideological, are inviolable” whereas section II adds:
“The undisturbed practice of religion is guaranteed.”[58]

Comparing with European Convention on Human Rights (ECHR), this Constitutional guarantee is more protective of religious freedom than the guarantee, which is stated in European Convention on Human Rights (ECHR).[59] The ECHR defines freedom of conscience as a basic human right, but subjects it to certain restrictions. The Convention states that

“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 the protection of the rights and freedoms of others”.[60]

In this context one could well conclude that the protection guaranteed under the ECHR is not absolute as it is under the German Basic Law.[61] The decision of the Constitutional Court had therefore a firm base in the German law.
In his dissenting opinion the German judge Di Fabio argued that the teacher as a public employee represents the state and should therefore comply the requirements imposed by the state on civil servants.[62] He stressed that “ who ever wishes to become a civil servant freely chooses to side with the state”[63] and came to the conclusion that the refusal of the applicant’s right to public employment was compatible with Constitution.[64] The dissenting opinion was based on the right of the parents to care for and bring up their children “as a natural right extending to education in religious and philosophical matters and implying the right to keep the children away from religious convictions that seem to the parents wrong or harmful.”[65] This right is guaranteed by Article 6 of the German Basic Law which states:

“The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them.”[66]

This right of the parents is further specified by Article 7 which states that:

“Parents and guardians shall have the right to decide whether children shall receive religious instruction.”[67]

In this context one could argue that there is a significant difference between giving the religious instructions and wearing religious symbols. Wearing religious symbols do not necessarily mean giving religious instructions and it is therefore unacceptable to use this Article as an argument against the right to religious manifestation.
In order to understand properly the right to religious manifestation one should differentiate between the religious symbols in public entities and religious symbols used as the manifestation of individual religious conviction. The religious symbol in the classroom wall is not same as the religious symbol on a body of the teacher or student. If the classroom is decorated according to a particular religious belief, it should be possible to think about the rights of the parents to keep away their children from “religious convictions that seems to parents wrong or harmful.”[68] It is very likely that the pupils will be affected by the nature of decoration used in the school. If a Christian student was forced to study in a classroom decorated by a crescent or a Muslim student was forced to study under the cross it would definitely infringe the right of the parents to care of and bring up the child according to their wishes. However, if the teacher or the pupil has a religious symbol as a manifestation of her belief it must be considered just as a symbol belonging to her, it does not have any relationship with the third party. It just means that she is a Muslim or a Christian or a Jew. One could therefore conclude that if the expression of the religious belief is without any aim to influence or propagandise others, it must not be regarded as having a potentionally negative effect on the environment. The narrow interpretation would lead to restrictive practices on the religion itself. Consequently, it would cause a disintegration of the society.[69] It is therefore essential to treat the cultural and religious diversity with tolerance rather than suppression.
It is obvious that the involvement of secular state in social engineering would lead to imposition of its subjective political ideology on individuals. One could argue that the public sphere should be the area where all citizens including civil servants have the right to manifest their belief. If the state lose its neutrality the citizens would have no possibility to defend against forceful imposition of particular state policy. One could well say that if the headscarf is going to be accepted as a ‘threat’ for the society, this restriction will be not only against the individuals but against the manifestation of the religion itself. It is unacceptable so that the state as a neutral actor would be in a position to declare one particular religious manifestation as hostile. One could conclude that if the situation continues as it is, there will be no guarantee that one day the borders of public sphere will not end in the classrooms but will include extend into hospitals, public transport and streets.

4. Turkey ‘more secular than France - more European than Europe!’

Turkey, the inheritor of the Ottomans has been at the centre of reformation or transformation policies since the beginning of the 18th century.[70] The reforms started during the Ottoman Sultan Selim the III. (1789-1807) and have continued after the establishment of Turkish Republic.[71] The founder of the Turkish Republic, Mustafa Kemal Ataturk, brought in the administration of all religious affairs including religious education under the government’s control. In 28 November 1925 the government ordered the army and the civil servants to wear European style hats, instead of the Turkish cap, the fez.[72] Subsequently, the law completely banned the fez and obliged all male Turks to wear hats.[73] In 1926, the government ordered that all civil servants and the military personnel had to wear Western style clothes. The civil servants were obliged to remove headscarves in state buildings.[74] On 3 December 1934. the legislative introduced a new law, which has banned the religious attire worn by the religious clerics (imams and priests) in public.[75] According to this law, regardless of their denomination or religion it was not allowed to wear religious insignias in public (including streets) except the buildings which were dedicated to religious prayers and ceremonies.[76] Due to the protection given to non-Muslim minorities at the Loussane Treaty, they were excluded from this.
This law is still in force and it is the base of the headscarf ban in Turkey.
The position of the religion in the secular republic of Turkey is based on Article 2 of the Turkish Constitution. It states:
“The Republic of Turkey is a democratic, secular and social state governed by the rule of law; bearing in mind the concepts of public peace, national solidarity and justice; respecting human rights; loyal to the nationalism of Atatürk, and based on the fundamental tenets set forth in the Preamble.”[77]

Article 24 of the constitution guarantees the freedom of religion:
“Everyone has the right to freedom of conscience, religious belief and conviction. Acts of worship, religious services, and ceremonies shall be conducted freely.”[78]

However, despite this constitutional guarantee the religious freedom in practice is subjected to harsh and strict restrictions.[79] The most controversial debates are centred around women’s headscarf. There have been a number of cases concerning this issue heard in the Turkish administrative courts. The most famous is the case of Leyla Sahin, which has finally been brought to the European Court of Human Rights.
In Leyla Sahin v Turkey[80]the applicant came from a traditional Muslim family. She felt it as her religious duty to wear the Islamic headscarf.[81] Leyla was studying at the University of Istanbul as a medicine student when the Vice –Chancellor of the university issued a directive prohibiting access of the students wearing the Islamic headscarves and students with beards to University.[82] Despite this directive, Leyla insisted on her right to wear the headscarf. She applied to the Istanbul Administrative Court, which, however, refused her application. Similarly, the Supreme Administrative Court dismissed the appeal. In February 1999, the University initiated disciplinary proceedings against Leyla and a few more students to suspend them from the University for participating in a protest against the University dress policy.[83] In September 1999, the applicant left Istanbul University and continued in her studies at the faculty of Medicine at University of Vienna.[84] In the meantime, she applied to the European Court of Human Rights under Articles 8, 9, 10 and 14 of the ECHR.[85] The Court took the view that the wearing of headscarf could be considered as motivated by religion and accepted the restriction as interference with her right to manifest her religion.[86] It held that the policy of the University was in accordance with Article 9 (2) of the ECHR.[87] Moreover, it found that the interference was justified also by the case law of the Turkish Constitutional Court which in several cases took the view that to allow students to cover their head for religious reasons was against the Turkish constitution.[88]
The Human Rights Court justified its decision by the following:

“the impugned measure primarily pursued the legitimate aims of protecting the rights and freedoms of others and protecting public order. In democratic societies, in which several religions co-existed within one and same population, it might 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 were respected. The principle of secularism in Turkey was undoubtedly one of the fundamental principles of the state, which were in harmony with the rule of law and respect for human rights.”[89]

It is remarkable that the Court took the view that it is necessary to respect everyone’s belief. However, surprisingly the Court did not recognize the right of a group in a society, which felt like to cover their heads because of their belief. The finding was thus in contradiction with the decision itself. One could therefore argue that the rights of a particular group were disrespected. To sum up, the competing interests of secular society took advantage against the rights of religious women.

The Court further decided that:
“Margin of appreciation is particularly appropriate when it comes to the regulation by the contracting states of the wearing of religious symbols in teaching institutions, since rules on the subject vary from one country to another depending on national traditions and there is no uniform European conception of the requirements.”[90]

Finally, it was held that none of the claimed articles were violated.
After being transferred to University of Vienna the applicant continued in her studies without any restrictions on the wearing of her headscarf. In this context one could question how it is possible to manifest the religion in one contracting state of the ECHR, but it is not possible in another contracting state. This proves that there is no unique European concept of the headscarf issue. One could expect limitations on the manifestation of Islamic headscarf in Austria, which is a Western society without any historical ties with Islam. However, the ECHR failed to take into consideration the historical background, social and religious structure of the Turkish society. One could well say that it would be natural to accept the headscarf in Turkey as a country with dominant Muslim population and deep Islamic roots. It is possible to conclude that by this decision the Court expressed its approval with the harsh and strict militant secular policies in Turkey, which have been in practice since the establishment of the republic.
Leyla Sahin immediately appealed against the decision and the case, which is still pending before the Grand Chamber of the EHRC.[91]

In Turkey regardless of public, private or religious schools it is not allowed to wear the religious insignia at any level of the education. There is no alternative option for the students like in France to go to private schools. Even for the distance learning, the state issued a directive not to accept pictures with headscarf for the purposes of formal registration process. Moreover, parents are not allowed to attend their children graduation ceremonies with headscarf. In 2002, at Ataturk University in Erzurum, mothers who wore headscarves were not permitted to take part in the ceremony unless they wore wigs instead of headscarves.[92]
It is also a fact that the state university hospitals have not been willing to accept patients with headscarf. Mrs. Medine Bircan was a senior citizen who in 2002 lost her life at the door of an hospital due to this policy.[93] Because she wore a headscarf on her ID picture, she was denied healthcare in the emergency room at the Istanbul Capa Hospital.[94]
In 2003, Miss Hatice Hasdemir Sahin, a lawyer, was denied to appear before the court because of wearing the headscarf.[95]
One could mention the case of Mrs. Merve Kavakci, a veiled woman, who was elected mostly by conservative votes as a representative of the Turkish National Assembly in 1999.[96] When attempting to enter the parliament to take her oath she was denied by the out-going government which considered her headscarf as a challenge to the secular republic.[97] Consequently, she lost her Turkish citizenship because she had become a U.S. national without permission of Turkish authorities.[98] In addition, she was persecuted on the grounds of instigating hatred and discriminating against people and her political party was banned.[99]
One could well say that the decision of the Turkish authorities was politically influenced as they could not stand a woman elected with her veil as deputy in the National Assembly. This proves the aggressive state policy against the manifestation of religion at any sphere of public life.
The current Turkish Prime Minister, Mr Recep Tayyip Erdogan, reported to have sent his two daughters to study at the USA universities to avoid the ban on headscarves in public schools and universities in Turkey.[100] At this point one could mention the situation of many other students in contrast with the Prime Minister’s daughters who do not have opportunity to study abroad because they cannot afford it. Shall they give up their headscarves or their right to education? Considering the fact that even the Prime Minister who is elected by majority votes cannot challenge the headscarf ban, one could presume that behind this state policy there are strong militant secularist groups (mainly army) whose power supersedes the authority of the legitimate government.
The advocates of the ban on headscarf argue that the headscarf is not compatible with the democratic standards of the developed world.[101] However, if this is the case could one say that “the police officer who strips a little girl’s headscarf off against her free will respects democracy and human rights”?[102]
To sum up, there is a problem of manifestation of belief at every level of public life in Turkey. At present, there are no indications of possible attempts to change this situation in order to achieve a social consensus on this issue. It is therefore suggested to bring the headscarf problem to the public agenda with a referendum which would reflect real views and true feelings of the public in this Muslim country.

5. United Kingdom: a more tolerant approach

In Britain, the Islamic headscarf attracted a great deal of media attention in 1990s, when two Muslim students wearing Islamic headscarves were not permitted to enter into the classroom at a school in Manchester.[103] The problem was finally solved in favour of the students when it was decided to allow them to enter the school if colours of their headscarves satisfy the school uniform policy.[104] However, this was not the only case when the schoolgirls’ headscarf provoked widespread public debates in Britain.
The most significant case was the case of Shabina Begum, a fifteen years old Muslim school girl. In R (Shabina Begum) v Head Teacher and Governors of Denbigh High School[105]the applicant was refused entry to Denbigh High School because of wearing Jilbab (a long cloak providing full covering bar face and hands) in September 2002. Her brother as her representative argued that shalwar kameeze which is accepted as a uniform for Muslim girls in Denbigh High School is not an appropriate dress according to Islam.[106] The applicant based her claim on Article 9 of the ECHR. In the first instance, the court, however, decided that “the school uniform policy and practice has, and continues to have, a legitimate aim and is proportionate. The legitimate aim was the proper running of a multicultural, multi-faith, secular school. The limitation specifically devised with the advice of the Muslim community”[107] and therefore this court refused her claim. Following this decision the claimant appealed. The appeal court argued the question of whether “the schools rule was necessary in a democratic society in the interests of public safety, for the protection of public morals, or for the protection of the rights and freedoms of others.”[108] The appeal court referred to the Turkish case of Leyla Sahin (Sahin v Turkey (App No. 444774/98, 29 June 2004) where the similar claim was rejected by reason of necessity.[109] It was held that the case of Shabina Begum should be distinguished from the case of Leyla Sahin, because Turkey unlike United Kingdom was a secular state with a written Constitution providing for secularism.[110] The appeal court decided that “the appellant had been excluded wrongly from school and had unlawfully denied her right to manifest her religious belief and had unlawfully denied her access to suitable and appropriate education.”[111] In summing, the appeal court decided in favour of the applicant and accepted her right to manifest her belief in a public school.
One could well say that this decision could be regarded as an important victory of the advocates of the religious freedom. The British Court had taken a very important approach by distinguishing the Sahin v Turkey case from the current case. The determination of the British Court, which stated that Turkey was a secular state and had written constitution providing for secularism, is very remarkable, because despite the same problem in both countries there are two different practical solutions. While the former represents a militant secularist approach, Britain developed a more tolerant and humanistic attitude when confronting the same problem. Despite the fact that United Kingdom is neither a theocratic nor a radical secularist state, it managed to find a balance between competing interests of different groups in the society. In this context one could well say that the attitude of the British court clearly reflects awareness of religious rights, which are guaranteed under British Human Rights Act and British obligations under International Law.
In the current case, the applicant had been excluded from school for two years and the school authority’s arbitrary decision was later changed by the court decision. One could suggest that the responsible authorities should in addition be ordered to pay compensation in order to minimize politically influenced arbitrary restrictions of administrative authorities.

6. Comparison of the situation in United Kingdom, Germany, France and Turkey
Comparing the outcomes of cases form the above mentioned countries one could well say that the manifestation of religious freedom is allowed without any restrictions at every level of the public life, including education and employment, in the United Kingdom. British authorities are more willing to solve the problems on case by case basis at local levels[112] instead of taking up an ideologically oriented general position.
In Germany, when the question is raised, the German Constitutional Court decided that the current German constitution guarantees the right to employment for the state servants wearing the headscarf.[113] However, the Court also indicated that the headscarf could be banned by enacting new laws.[114] The debates in Germany have mostly been focused on the teachers’ headscarf and the pupils’ right to education without any negative religious influence. After the decision of the Constitutional Court on the case of Ferestha Ludin the Education Ministers of Germany’s 16 states came together to discuss possible new laws which would restrict headscarves.[115] However, they could not agree on uniform rules concerning headscarves. The ministers of several states including Hamburg, North Rhine-Westphalia and Rhineland-Palatine concluded that there is no need for a new law.[116] Hamburg's minister mentioned that “Muslim teachers in his state have been wearing the headscarf since 2000 without provoking problems.”[117] A number of German states including Baden-Wuerttemberg, Hesse, Bavaria, Berlin, Lower Saxony, and Saarland declared that they plan to ban the headscarf.[118] Some of them has already enacted new legislations, same as in France. However, the outcome of these laws is not clear yet.
In France the affiliation of religious attire is prohibited in secondary schools. The ban is not including private secondary schools and universities. The measures taken by the government has similarities with the practices in Turkey, but the conditions are more flexible. The students in France can avoid the headscarf ban by choosing private secondary schools. Moreover, the ban is not including the universities.
In Turkey religious manifestation is not allowed at any level of the public life including employment and education. The measures taken against religious woman are highly discriminative and isolative. One could well say that the limitations prescribed in Turkey against religious affiliation are disproportionate to any possible legitimate aims of the government and incompatible with the object and purpose of the ECHR and other internationally recognized human rights treaties. The decision of the Human Rights Court in Sahin v Turkey case reflects a negative attitude against political Islam. In accordance with this, the court had decided that Turkey the had right to apply principle of ‘margin of appreciation’ against religious ‘threats’. However, this cannot be used as a justification for the extreme secular practices in Turkey. The Court had referred to possible threat of political Islam in Turkey. The political conditions of the countries should not be determinant of judicial decisions. Therefore, one could well criticize the decision of the human rights court from a legal point of view. Turkey as a secular republic is applying harsh methods of secularism without any concern for religious freedom. The lack of religious freedom in Turkey should be one of the priorities for EHRC.In this context one could well criticize the European Union and other Western Institutions particularly because of avoiding to criticize Turkey on the ground of having an official regime, which is against the European values and which cannot be seen in any other European Countries.They do so because they like to avoid providing support to the Islamic critics of the regime. However, the decision in Sahin v Turkey case is a let down for the supporters of religious freedom in Turkey. Remembering that the case of Leyla Sahin is still pending before the Grand Chamber of the EHRC, it would be welcome if the Grand Chamber took into consideration the lack of manifestation of belief at every level of the Turkish Republic and lead to a new brave concept of religious manifestation in Turkey.
In summing up, the problem is same in all the above mentioned countries but there are differences in approaches. At this point one could question which attitude is right. The ban in Turkey or the free manifestation in United Kingdom? The answer should be that definitely the religious freedom and particularly religious manifestation is enjoying the best guarantee in the United Kingdom.

As explained above, the headscarf is not just a custom or cultural tradition but it is the manifestation and the practice of the religion itself.
The United Nations Universal Declaration of Human Rights states:
“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 teaching, practice, worship and observance.”[119]
The term of practicing religion should not be subjected to narrow interpretations. It has been mentioned in the introduction that the Qur’an orders Muslim women to cover their head and have modest dress code as an obligation. Therefore, it should be accepted that headscarf is a religious necessity for the practicing Muslim women. Negative interpretations would force the Muslim women to choose between her rights and her religion.[120] The ban on headscarf in public would make Muslim women either be a sinner according to her religion or deprive her from the public services, which should equally apply to all citizens.

It should be mentioned that similarly, the American Declaration on the Rights and Duties of Man states:
“Every person has the right freely to profess a religious faith, and to manifest and practice it both in public and in private.[121]
To freely profess a religious faith, and to manifest and practice in both in public and private should include the right to manifest the belief unless it is contrary to public interest. As an example one could mention that “the requirement for a motor-cyclist to wear a crash helmet, which obliges a Sikh to remove his turban (the continuous wearing of which is a religious requirement for him) when riding his motor-cycle, interferes with his freedom of religion, but is justified for the protection of public health.”[122]
The general rule is the protection of the freedom: the exception is its restriction. In the above mentioned case the restriction of freedom is justified because it is necessary for the protection of public health. However, wearing religious insignia in classrooms will never entail an immediate danger for third parties. It is naturally related to individual preference. Therefore, any restriction should be regarded as arbitrary and cannot be justified by the protection of public interest.
European Convention on Human Rights Article 9 states:
  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 the protection of the rights and freedoms of others.”[123]
Section 1 of Article 9 guaranties the religious freedom, whereas section 2 defines the circumstances under which the limitation can be imposed. According to this Article, the right to manifest the belief includes not only the manifestation in private, behind the closed doors but also in public, with community. The terms “such limitations as are prescribed by law” protects the right against arbitrary infringements. The limitation “necessary in a democratic society in the interest of public safety for the protection of public order” could be subject to narrow interpretation and used as justification to ban the insignias in public. But it will never have legitimate justification unless the individual shows provocative behavior and violates rights and freedoms of others (e.g. to force others to wear headscarf). One can conclude that the restriction on any kind of manifestation of belief in public should be decided under objective criterion and it should only be justified when the individual infringes the rights of others. One could well agree with the opinion that “the secular state should be, neutral, respectful of all opinions and beliefs, guarantor of freedom of religion and worship, and propagandist for no faith or ideology and should not oppose religious movements that prosper in its territory using as its reason only the policy of protecting the public order.”[124]
African Charter on Human and Peoples Rights states:

“Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.”[125]

No restriction is allowed under African Charter. One could well say that the language of the text is very protective.

The International Covenant on Civil and Political Rights reads:

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
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.
4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions”.[126]
One could well say that the text of the ICCPR has similarities with ECHR. The first section of Article 18 guarantees the manifestation of the belief in public and private and section three brings limitations, which are necessary in order to protect public safety, public order, public health or morals or the fundamental rights and freedoms of others. The manifestation of belief in public and private is guaranteed under both international documents.
The right of parents to ensure the religious and moral education of their children in conformity with their own convictions is protected by section 4. It is, thus, the legitimate right of the parents to grow up their children, as they believe and encourage them to manifest their belief by wearing religious insignia. Considering this guarantee one may well say that the ban on religious insignia infringes not only the religious freedom of students, but breaches also the right of parents guaranteed under the ICCPR.

In addition to the guarantees stated in the above mentioned international documents it appears to be of a high importance to mention a finding of the Human Rights Committee in an anonymous case from Uzbekistan related to the problem of headscarf. In its Communication the Committee holds that

“the author's claim that her right to freedom of thought, conscience and religion was violated as she was excluded from University because she refused to remove the headscarf that she wore in accordance with her beliefs. The Committee considers that the freedom to manifest one's religion encompasses the right to wear clothes or attire in public which is in conformity with the individual's faith or religion. Furthermore, it considers that to prevent a person from wearing religious clothing in public or private may constitute a violation of article 18, paragraph 2, which prohibits any coercion that would impair the individual's freedom to have or adopt a religion.”[127]

The same opinion as in the above mentioned Communication the Committee expressed in its General Comment No. 22 (para.5). It stated that

“The freedom to manifest religion or belief may be exercised either individually or in community with others and in public or private. The freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts. The concept of worship extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including the building of places of worship, the use of ritual formulae and objects, the display of symbols, and the observance of holidays and days of rest. The observance and practice of religion or belief may include not only ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or head coverings, participation in rituals associated with certain stages of life… . .”[128]

One can conclude that Human Rights Committee interprets the right to manifest the religious belief as including the right of wearing of distinctive clothing or head coverings. One could well say that the Human Rights Committee as a monitoring body of the ICCPR considers the infringement into religious manifestation as unlawful. It could therefore be suggested that the contracting states of the ICCPR make their policies consistent with the findings of the Human Rights Committee.

One can well agree with the opinion that “women are facing discrimination, intimidation, harassment torture and physical abuse not only from state organs but from their own family and private institutions.”[129] In many countries public and private institutions refuse to employ women, because of their religious attire. Especially, the Muslim women face double discrimination in their private and public lives. The refusal of employment in public institutions has triggered the policy change in private institutions as well. Under international law the states have responsibilities to take action against discrimination. Article 2 of the Convention on the Elimination of All Forms of Discrimination against Woman (CEDAW) protects women against all forms of discrimination and obliges states to eliminate the inequalities.[130] However, today the politically influenced government decisions on religious insignias entail discrimination against women. The women can not work in public as a teacher, nurse, doctor or civil servant if she has headscarf. One could therefore well say that the society has a double standard when it comes to the rights of religious woman: it is seen as natural for secular woman to enjoy freedoms guaranteed under the Convention, but forbidden for religious woman. In contemporary world, therefore, secular women is more equal than religious women before the law.

Article 7 of CEDAW guarantees:
“a) States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right;
b) To participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government;
c) To participate in non-governmental organizations and associations concerned with the public and political life of the country[131]

Obviously, the language of this text does not prescribe any restriction in public for the woman who is covering her head.
One could well say that the ban policy has negative impact on the lives of women. It could be argued that this policy on religious insignia is a legally organized abuse towards women. Neither the state nor the family should have the right to decide on behalf of a mature and adult woman; she should necessarily be given the right to take her own decision. According to Article 2 of the Women’s Convention States Parties condemn discrimination against women “in all its forms”[132] and agree to eliminate discrimination “by all appropriate means.”[133] The term “in all its forms” is undoubtedly includes the discrimination on religious and sexual grounds.

Article 4 of CEDAW further states:

Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.[134]

The CEDAW Committee has stated in its general recommendation No 5 regarding Article 4 that

“it is not enough to guarantee women treatment that is identical to that of men. Rather, biological as well as socially and culturally constructed differences between women and men must be taken into account.”[135]

The statement in article 4 “but shall in no way entail as a consequence the maintenance of unequal or separate standards” brings the states under international obligation to take into account socially and culturally constructed differences between men and women. These take us to the consideration that if viewing the women’s headscarf as a religious necessity it could happen that her family will not consent her to work or study when she removes her headscarf. The ban will consequently cause denial of this woman’s right to achieve her full potential in the political, economic, social, legal and cultural life. This will entail her isolation and at the same time discrimination on grounds of gender and religion what is clearly inconsistent with the basic principles of international law.[136]
Referring to the cases and the international human rights law documents mentioned in the previous chapters, religious insignia is not only a matter of manifestation of the religious belief but also a matter of the integration of the society. The immigration countries such as France, United Kingdom, Germany and other European states are now accommodating different religious communities.[137] The mostly affected religious community is the Muslims, who are victims of the harsh interpretation of secularism. The character of their religion determines the headscarf as a necessity. One cannot deny the obligation of the state to respect the historical background of the society as a connecting point with their religious identity. The state needs to take into consideration the historical background of the communities.
One could well say that the victims and targets of the suppressive and hostile state policies who feel that they need to protect their identity against assimilation cannot be considered as living in a state based on the rule of democracy and equality with respect to basic human rights principles. In the light of these determinations the ban on religious symbols would not support the integration, but it will lead to a disintegration of the society. The restricted individuals will have difficulties to accept the authority of the state and they will refuse to be loyal to the state. This will lead to the lack of communication between the individual and the state. The restricted individuals whose rights are denied would have a feeling of injustice; they would feel as foreigners or aliens who do not belong to the society as their religious identity is not appreciated. Consequently, this will negatively affect the communal peace. In this context one could well agree with the opinion that “the legal order could be justified by the notion of free and equal citizens coming together to establish a system of government.”[138]
The globalization has endangered the existence of minority religious and cultural groups. The host countries seem not to appreciate the existence of the other communities, as they accept only the western culture to be consistent with the European values. Hence, multiculturalism as a discourse are brought under discussion due to recent events and fears emanating from these events. Thus, the rights and freedoms of minorities are becoming more fragile under such circumstances, as human rights are traded with the so-called security of the socities, which has been the source of criticism of the developing democracies. This now characterises the nature of the new politics in the west, which undermines the very nature of the liberal, plural and participatory democracy marked the Western world.
The issue is the right to existence of different religious groups with all their values and with respect for their historical background.[139] This includes not only religious insignia in public, but also the appreciation of the right to existence of the other which is different and not usual in a particular society.[140] One could well say that the ban on the religious insignia is a denial of the identity of the individual in public. The secular state needs to be neutral and serve all its citizens on the principle of equality. The tolerance for the religious insignia in public will not negatively affect the neutral character of the secular state unless it is used by the particular person for propaganda and provocation. One could well agree, as mentioned above, with the view that the implementation of hostile secular rules is against the multiculturalism.[141] In addition, the ban on religious insignia is very likely to undermine the peace in the communities, which have been living together in harmony with respect for each others ethnic and religious identities for ages.
The core issue is how the Western civilization will accommodate the Islamic identity.[142] After the September 11 and the terrible 7/7 London bombings, the Islamphobia has become more systematic. Since these events the number of attacks on the Muslim community has risen significantly according to police and Muslim groups in Britain.[143] With the rise of these attacks, a leading Islamic scholar, Professor Zaki Badawi, head of the Muslim College in London and chairman of the Council of Mosques and Imams, has advised Muslim women “who fear being attacked physically or verbally to remove their hijab (headscarf) so as not to be identified by those who are hostile to Muslims”[144] and thus to protect themselves from attacks.
Europe will have to decide whether to accept Islam with its true identity or to view it as hostile and suppress the Muslim communities. However, the matter of fact is that Islam is already present in Europe as a second largest religion and in this situation the clash between the state and the particular communal identity would lead to isolation of members of that community what could give birth to extremism.[145] In addition, as Tariq Ramadhan states the European identity has evolved in relation to Muslims for centuries now, and therefore, Islamic presence in Europe is not new, only the nature is different.
The state, wherever it might be, is bound to respect the individuals and their belief; the involvement of state in challenging the religion will turn against the state as religious radicalism. The secular identity and the religious identity need to find the balance to exist together in a multicultural society. At this point one could agree that “appreciation of the diversity would enrich all communities both religious and secular.”[146] One could well say that regardless of their religious identity the citizens of a state which follows the ban policy are bounded by the same duties (e.g. paying taxes); however, when it comes to the utilisation of rights and their presence, therefore, in the public sphere some of them are subjected to discrimination on religious grounds.
In concluding, the state should respect that “many religious doctrines or beliefs dictate standards of social conduct and responsibility and require believers to act accordingly.”[147] It should be accepted that religion is something what cannot be excluded from daily life. State cannot require from religious minorities to keep their identity in their homes.[148] Society at large needs to reflect the diverse nature of all communities by adapting various services to meet the specific needs of all communities.[149] One could conclude that “references to universal human rights would have to be accompanied by qualifications based on such factors as historical, cultural, religious, ethical and philosophical particularities.”[150]
Considering the different approaches in France, Germany, Turkey and the United Kingdom, the headscarf controversy should be accepted as a serious problem of international human rights which requires to be sorted out. As the level of protection is highest in the United Kingdom, it is suggested that British approach should be adopted in order to ensure the balance between the competing interests in the society.

[1] L.M. Liederman, “Religious Diversity in Schools: the Muslim Headscarf Controversy and Beyond”, (2000) 3 Social Compass 47, pp 367-381
On Web August 2005

[2] C. El Hamel, “Muslim Diaspora in Western Europe: The Islamic Headscarf (Hijab), the Media and Muslims Integration in France”, (2002) 3 Citizenship Studies 6, pp 293-308
URL d44d&referrer=parent&backto=issue,4,7;journal,14,2 2;linkingpublicationr esults,1:104556,1
On Web August 2005


[4] op. cit (fn 1)

[5]N. Fadil, “Muslim Girls in Belgium, Individual Freedom Through Religion?
On Web August 2005

[6] L.M.Liederman, “Pluralism in Education: the Display of Islamic Affiliation in French and British Schools”, (2000) 1Islam and Christian Muslim Relations 11, pp 105-117
URL 0af6&referrer=parent&backto=issue,5,7;journal,22,2 2;linkingpublicationr esults,1:104605,1
On Web August 2005

[7] op. cit (fn 2)

[8] Ibid.

[9] “Cambridge Advanced Learners Dictionary”
On Web July 2005

[10]“ Oxford Dictionaries”
URL =exact&sortorder=score%2Cname
On Web July 2005

[11] “Wikipedia: the Free Encylopedia”
On Web July 2005

[12] Ibid.

[13] J. Robert, “Religious Liberty and French Secularism”, (2003) Birgham Young University Law Review 637 at p 2
On Web July 2005

[14] Ibid.

[15] Leszek Lech Garlicki, “Perspectives on Freedom of Conscience and Religion in the Jurisprudence of Constitutional Courts”, (2001) Birgham Young University Law Review 467 at p 5
On Web July 2005

[16] Ibid.

[17] Ibid.

[18] Ibid.

[19] D.M.Beatty, “The Forms and Limits of Constitutional Interpretation”, (2001) 49 Am. J. Comp. L. 79 at p 2
On Web July 2005

[20] Ibid.

[21] Ibid.

[22] European Convention on Human Rights, Article 8 states: “Everyone has the right to respect for his private and family life, his home and his correspondence”

[23] B.Tahzib-Lie, “ Applying a Gender Perspective in the Area of the Right to Freedom of Religion or Belief”, (2000) Brigham Young University Law Review 967 at p 2
On Web July 2005

[24] Ibid.

[25] Ibid.

[26] Ibid.

[27] M.C. Ali,“The Question of Hijab: Suppression or Liberation”
On Web July 2005

[28] Ibid.

[29] “Encyclopedia Britannica”
On Web July 2005

[30] op. cit (fn 11)

[31] The French Constitution, 1958, Art. 1

[32] A.Frhr von Campenhausen, “The German Headscarf Debate”, (2004) Brigham Young University Law Review 665 at p 11
On Web July 2005

[33] T. J.Gunn, “Religious Freedom and Laicite: A Comparison of the United States and France”, (2004) Brigham Young University Law Review 419 at p 13
On Web July 2005

[34] Ibid.

[35] Ibid at p 5

[36] Ibid at p 13

[37] A.F. von Campenhausen, “The German Headscarf Debate” (2004) Birgham Young University Law Review 665 at p 11
On Web July 2005

[38] T. Wilson, “Handling the Headscarf Issue: The French Headscarf Ban in a European Context”
On Web August 2005

[39] A.Ruff, “Newsline” (2004) December Education Law Journal
On Web July 2005

[40] op. cit (fn 11)

[41] C.Kros, “Secularity in a World ‘Torn by Difference’: A Consideration of the French Headscarf Affair from South Africa”
On Web August 2005

[42] Ch.Langenfield & S.Mohsen, “Developments –Germany: The Headscarf Case”, (2005) January International Journal of Constitutional Law at p 5

[43] S. Gemie, “Stasi’s Republic: the School and the Veil, December 2003-March 2004”
On Web August 2005

[44] Ibid.

[45] Ibid.

[46] op. cit (fn 33) at p 18

[47] Ibid.

[48] op. cit (fn 42) at p 1

[49] O. Gerstenberg, “Germany: Freedom of Consience In Public Schools”, (2005) January International Journal of Constitutional Law at p 1
On Web August 2005


[51] op. cit (fn 42) at p 2

[52] op. cit (fn 49) at p 2

[53] Ibid.

[54] op. cit (fn 49) at p 2

[55] op. cit (fn 42) at p 2

[56] Basic Law for the Federal Republic of Germany, (1949), Art. 33

[57] op. cit (fn 42) at p 2

[58] op. cit (fn 56), Art. 4

[59] op. cit (fn 49) at p 2

[60] European Convention on Human Rights, (1950), Art. 9(2)

[61] op. cit (fn 49) at p 2

[62] op. cit (fn 32) at p 6

[63] Ibid.

[64] Ibid.

[65] op. cit (fn 49) at p 2

[66] op. cit (fn 56), Art. 6 (1)

[67] Ibid, Art. 7 (2)

[68] op. cit (fn 49) at p 2

[69] D. McGoldrick, “Multiculturalism and its Discontents”, (2005) 5 Human Rights Law Review 1
URL xt=shabina+begum&andorexactfulltext=and&searchid=1 124106320836_6&stored_search=&FIRSTINDEX=0&sortspe c=relevance&resourcetype=1&journalcode=hrlr&eaf
On Web August 2005

[70] T.Kucukcan, “State, Islam, and Religious Liberty in Modern Turkey: Reconfiguration of Religion in the Public Sphere” (2003) Brigham Young University Law Review 475 at p 1
On Web July 2005

[71] Ibid.

[72] A. Shaafat, “The Sad Story of Turkish Secularism”
On Web August 2005

[73] Ibid.

[74] 2413 Sayili “Bilumum Devlet Memurlarinin Kiyafetleri Hakkinda Kararname” 5 Eylül 1341, Resmi Gazete No:168 Kararname No: 2413

[75] Turkiye Cumhuriyeti Kilik Kiyafet Kanunu Kanun No:2596 URL:
On Web Auqust 2005

[76] Ibid.

[77] The Constitution of the Republic of Turkey, (1982), Art.2

[78] Ibid, Art. 24

[79] op. cit (fn 70)

[80] Leyla Sahin v. Turkey, App No. 44774/98, 29 June 2004
On Web July 2005

[81] Z. Leventhal, “Education: Case Report”, (2005) March Education Law Journal 6.1(40) at p 1
On Web August 2005

[82] op. cit (fn 80)

[83] op. cit (fn 81)

[84] op. cit (fn 80)

[85] Ibid.

[86] A.N.Brown, “Recent Cases in the European Court of Human Rights”, (2004) August Human Rights&UK Practice 5.2(20) at p 5
On Web August 2005

[87] R.Smith, “Judicial Review of the Delineation Between Rights of Religion and Education” (2005) April Human Rights & UK Practice 6.1(11) at p 4
On Web August 2005

[88] op. cit (fn 86)

[89] op. cit (fn 80)

[90] op. cti (fn 80)

[91] op. cit (fn 87) at p 4

[92] “Testimony of Merve Kavakci at the United Nations Commission on Human Rights”, March 2005
On Web August 2005

[93] Ibid.

[94] Ibid.

[95] Ibid.

[96] op. cit (fn 70) at p 10

[97] Ibid.

[98] op. cit (fn 92)

[99] Ibid.

[100] op. cit (fn 39)

[101] op. cit (fn 92)

[102] Ibid.

[103] op. cit (fn 6)

[104] Ibid.

[105] R (Shabina Begum) v Head Teacher and Governors of Denbigh High School [2005] EWCA Civ 199

[106] op. cit (fn 87) at p 2

[107] op. cit (fn 105)

[108] Ibid.

[109] Ibid.

[110]Human Rights, “Notes and News”, Human Rights & UK Practice

[111] op. cit (fn 105)

[112] op. cit (fn 6)

[113] op. cit (fn 42) at p 2

[114] Ibid.

[115] V.Oezcan, “Gender, Religion, and Secularism Meet in Germany’s Head Scarf Battle”, March 2003 Humbolt University Berlin, Migration Information Source URL
On Web August 2005.


[117] Ibid.

[118] Ibid.

[119] United Nations Universal Declaration of Human Rights, (1948), Art.18

[120] A. Shachar, “Religion, State, and the Problem of Gender: New Modes of Citizenship and Governance in Diverse Societies”, (2005) 50 McGill Law Journal 49 at p 19
On Web August 2005

[121] American Declaration on the Rights and Duties of Man, (1998), Art. III, Chapter 1

[122] X v .United Kingdom (7992 /77)DR 14, 234 in Paul Sieghart, “ The International Law of Human Rights” at p 326

[123] European Convention on Human Rights, (1950), Art. 9

[124] op. cit (fn 13) at p 6

[125] African Charter on Human and Peoples Rights, (1981), Art. 8

[126] International Covenant on Civil and Political Rights, (1968), Art.18

[127] Author v Uzbekistan, Communication No. 931/2000 (18/1/2005), U.N. Doc. CCPR/C/82/D/931/2000
On Web August 2005

[128] Human Rights Committee, “General Comment No.22, Article 18”, Fourty -Eight Session 1993
On Web July 2005

[129] J.Rehman, “International Human Rights Law: A Practical Approach” in J.Rehman, International Human Rights Law” at p 346

[130] Ibid at p 351

[131] Convention on the Elimination of the All Forms of Discrimination Against Women, (1979), Art. 7

[132] Ibid, Art. 2

[133] Ibid.

[134] Ibid, Art. 4, Section 1

[135] CEDAW Committee “General Recommendation No. 25, on Article 4, Paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against Women, On Temporary Special Measures”
On Web August 2005

[136] R.K. M. Smith, “International Human Rights”, in R.Smith, Textbook on International Human Rights at p 196

[137] op. cit (fn 69)

[138] M. Loughlin, “Rights, Democracy, and Law”, in T. Campbell, K.Ewing and A.Tomkins(eds.), Sceptical Essays on Human Rights, pp 41-60 at p 42

[139] D. McGoldrick, “Multiculturalism and its Discontents”, (2005) 5 Human Rights Law Review 1
URL xt=shabina+begum&andorexactfulltext=and&searchid=1 124106320836_6&stored_search=&FIRSTINDEX=0&sortspe c=relevance&resourcetype=1&journalcode=hrlr&eaf
On Web August 2005

[140] op. cit (fn 69)

[141] Ibid.

[142] Z. Khan, “Muslim Presence in Europe: The British Dimension - Identity, Integration and Community Activism” (2000) 4 Current Sociology 48
On Web August 2005

[143] “Anti-Muslim Abuse Soars after 7/7”, 2005
On Web August 2005

[144] “Scholar Warns against Wearing Hijab in UK”, 2005
On Web August 2005

[145] op. cit (fn 69)

[146] F. Husain & M.O’Brien, “Muslim Communities in Europe: Reconstruction and Transformation”, (2000) 4 Current Sociology 48, pp1-13
URL d=1124882159134_12%20&stored_search=&FIRSTINDEX=0& minscore=5000&journalcode=spcsi
On Web August 2005

[147] D. Sullivan, “Advancing the Freedom of Religion or Belief Through the UN Declaration on the Elimination of Religious Tolerance and Discrimination”, in H. Steiner & P. Alston, International Human Rights in Context, pp 469-474 at 471

[148]M. Anwar & Q.Bakhsh, “State Policies Towards Muslims in Britain”, January 2002
On Web August 2005

[149] Ibid.

[150] A. F. Bayefsky, “The UN and the International Protection of Human Rights”, in B. Galligan & Ch. Sampford (eds.), Rethinking Human Rights, pp 74-86 at p 72
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